Delhi District Court
Hazrat Hussain vs Nanak Chand on 29 April, 2015
IN THE COURT OF SH BALWANT RAI BANSAL,
ADDITIONAL DISTRICT JUDGE02, SOUTH EAST,
SAKET COURTS, NEW DELHI
RCA No. 92/14
Hazrat Hussain
S/o Late Daruga Mian
R/o House No. 812, Phase III,
Madanpur Khadar, Punarwas Basti,
New Delhi - 110076
.......... Appellant
Versus
1. Nanak Chand, Junior Engineer,
D5, Slum & J.J. Department
Municipal Corporation of Delhi
Maharani Bagh, New Delhi
2. The Addl. Commissioner,
Slum & J.J. Department
MCD Punarwas Bhawan,
ITO, New Delhi
3. Sh. Munni Lal
R/o 1052, Phase III,
Madanpur Khadar, Punarwas Basti,
New Delhi - 110076
Also at:
3965, Oil Depot, Plot No. 2158,
Madanpur Khadar, Phase III,
JJ Colony, New Delhi - 110076
RCA No. 92/14
Hazrat Hussain Vs. Nanak Chand & Ors. Page 1 of 18
4. Sh. Prem Chand
R/o 5E, Tikona Park, Phase III,
Madanpur Khadar, Punarwas Basti,
New Delhi - 110076
Also at:
House No. 853, Phase III,
Madanpur Khadar, Punarwas Basti,
New Delhi - 110076
5. Sh. Shamsher
R/o 3G & 6F, Tikona Park, Phase III,
Madanpur Khadar, Punarwas Basti
New Delhi - 110076
Also at:
C597, Gali No. 2122, Samosa Chowk,
Madanpur Khadar, New Delhi 110076
......... Respondents
Date of institution : 27.09.2014
Date when judgment reserved : 29.04.2015
Date of Judgment : 29.04.2015
JUDGMENT
1. This is an appeal against the impugned judgment and decree dated 29.08.2014 passed by Ms. Shelly Arora, Addl. Senior Civil Judge, South, Saket, New Delhi by which suit of appellant was dismissed.
RCA No. 92/14 Hazrat Hussain Vs. Nanak Chand & Ors. Page 2 of 18
2. Brief facts as borne out from the Trial Court record are that the appellant had filed a suit for mandatory and permanent injunction against the respondents. It was stated that appellant is resident of House No. 812, PhaseII, Madanpur Khadar, Punarwas Basti, New Delhi - 110076 and when Slum & JJ Department allotted the plot to the appellant and other people in the locality, the area Engineer also gave space for park which was bounded by the MCD. On 19/20.11.2006 at about 12.00 noon, the respondent no. 1, the area Junior Engineer of MCD along with some civilians came in the park and made a division of the park informing that the park has been allotted to the people who did not get the land. The people of the locality started agitating against the JE for allotment of park to some people and filed complaint with Vigilance Department, Police Department etc. The Vigilance Officer visited the spot and assured the locality people that no construction would be carried out in the space allotted for park and accordingly nothing was constructed in the alloted area of the park. However on 13.04.2007 at about 3.00 PM, the Jr. Engineer along with 20 people came to the spot and started digging in the park to carry out construction. People of the locality tried to stop the work and requested the JE not to carry out any construction in the park as their children are not having any place where they can play, however the people were threatened by the associates of JE. It RCA No. 92/14 Hazrat Hussain Vs. Nanak Chand & Ors. Page 3 of 18 was further averred that the appellant had filed an application before Public Information Officer representing the office of the Deputy Commissioner, Central Zone, Municipal Corporation of Delhi, Lajpat Nagar, New Delhi on 14.05.2007 and in reply thereto the appellant was intimated that the total area of the triangular park is approximately 504 sq. yds. It was further transpired that the respondents no. 1 and 2 by misusing their official position had allotted an area of 108 square meters out of that park area in conspiracy with each other to six different persons from whom the respondents no. 3 to 5 had acquired the rights of occupation who are presently occupying the properties in dispute. The area residents had filed complaint with the authorities which led to the sealing of the aforesaid properties and the persons to whom those allotments were made could not be located. Whereas the respondents no. 3 to 5 were found to be in use, occupation and possession of said properties at the time of sealing thereof by the authorities. It was contended that the respondents no. 3 to 5 are in illegal use and occupation of the properties in dispute being Govt. land earmarked for a park and therefore super structure standing thereupon is liable to be demolished and the respondents no. 3 to 5 be prevented from misusing the said properties in any manner. Therefore, the appellant prayed for a decree of permanent injunction restraining the respondents from parting with possession in any manner in the RCA No. 92/14 Hazrat Hussain Vs. Nanak Chand & Ors. Page 4 of 18 property/park and from dispossessing the interest of the people of Madanpur Khadar Part III along with the appellant without due process of law from property/park at Phase III, Madanpur Khadar, Punarwas Basti, New Delhi. A decree of mandatory injunction was also sought directing the respondent no. 2 to demolish or remove the super structure standing on the Govt. land admeasuring 108 sq. meters forming part of Triangular Park measuring approximately 504 sq. meters.
3. The respondent no. 1 filed the written statement challenging the locus standi of the appellant to file the suit stating that appellant has no right, title or interest in the suit land. It was contended that the suit property is in fact intended for use as site office of the respondent no. 1 and 2 and the respondent no. 1 cannot be sued in his personal capacity being an employee of respondent no. 2. It was claimed that the respondent no. 1 had no role in the allotment of six plots in question and the Deputy Commissioner, Slum & JJ Department MCD was the competent authority for allotments of the plots in question who had granted approval for conducting draw of plots which was done by a duly constituted committee and the respondent no. 1 had nothing to do with the allotment of plots and he just handed over the possession of the plots on the basis of approved list of allotment/demolition slip/ provision identification slip. It was RCA No. 92/14 Hazrat Hussain Vs. Nanak Chand & Ors. Page 5 of 18 further contended that possession of the site concerned has already been handed over to eligible Jhuggi Jhopdi dwellers as per the draw list and the allotment letter/demolition slip and as such the suit has already become infructuous. The respondent no. 1 prayed for dismissal of the suit.
4. The respondent no. 2 in its written statement also challenged the locus standi of the appellant to file the suit having been no right, title or interest in the suit land which is wrongly described as a park. It was contended that land in dispute is not a park and as per the layout plan of the rehabilitation colony of Madanpur Khadar, PhaseIII, Delhi, a space was left for a site office of the Slum and JJ Department and since the site office was not constructed on the suit land, the same was lying vacant but suit land was not divided or allotted to any person as per law or with the sanction of answering respondent. It was further contended that plots were illegally carved out over the suit land which have been lying sealed since 13.05.2008. It was stated that the actions allegedly committed by respondent no. 1 were not under the authority or with the consent of respondent no. 2. It was further averred that the certain officials and officers of the Slum & JJ Department managed to grab the plots of land by having the same allotted to some persons without the consent or knowledge of the slum and JJ Department. The procedure of allotment was not RCA No. 92/14 Hazrat Hussain Vs. Nanak Chand & Ors. Page 6 of 18 followed in the subject matter of the present dispute and it was transpired that respondent no. 1 along with Sh. Phillip Toppo, Dy. Director and some other officials of the Slum & JJ Department had connived in conspiracy with the so called allottee of the plots illegally carved out from the suit land without following the prescribed procedure. The entire affair was duly investigated by the Anti Corruption Branch of CBI and all the six plots that had been illegally carved out from the suit land had been sealed by the Slum & JJ Department on 13.05.2008. It was contended that the suit land was intended for use as site office of the respondent no. 2 and hence neither the appellant nor any other private person has any locus sandi to claim relief in connection therewith. The respondent no. 2 also prayed for dismissal of the suit.
5. Joint written statement was filed by respondents no. 3 and 4 wherein they also challenged the locus standi of the appellant to file the suit contending that he is a habitual litigant and working as an agent of the land grabbers of the area creating nuisance to get illegal relief. It was alleged that the appellant himself illegally encroached the plot bearing No. 813 which was originally allotted in the name of one Shriphool. It was stated that the disputed space was left for the site office of the Slum and JJ Department of MCD but as the office was already working from some other location, therefore six additional RCA No. 92/14 Hazrat Hussain Vs. Nanak Chand & Ors. Page 7 of 18 plots bearing No. 1A, 2B, 3C, 4D, 5E & 6F were duly allotted after draw was held by the concerned department of the MCD following the legal proceedings.
6. The respondent no. 5 filed the separate written statement raising similar contentions as raised by respondents no. 3 and 4 in their written statement and prayed for dismissal of the suit.
7. Replication was filed by the appellant separately to the written statement of the respondents contending that suit was filed by him in his personal capacity and not in representative capacity as his rights were being threatened to be infringed by the respondents in connivance with each other. It was reiterated that the space was earmarked for use as a park by the resident of locality including the appellant and his children.
8. After completion of pleadings, issues were framed. Both the parties led their evidence in support of their contentions and the Trial Court vide detailed judgment and decree dated 29.08.2014 dismissed the suit of the appellant.
9. Aggrieved by the judgment and decree dated 29.08.2014, the appellant has preferred the present appeal contending that Trial Court erred in dismissing the suit of the appellant observing that since the appellant was not directly affected by the illegal and unauthorized encroachments attributable to the respondents no. 3 to 5 and that he RCA No. 92/14 Hazrat Hussain Vs. Nanak Chand & Ors. Page 8 of 18 had not filed the suit as a public interest litigation, he did not have the locus standi to file the suit. The Trial Court has also failed to take cognizance of the grave issue of unauthorized and illegal occupation of public land and it would not only incite more encroachments on public land but would also act as dampener for other people from public to bring to the notice of authorities such wrongful and illegal encroachments on public land. The Trial Court erred in ignoring the settled principles of law that even a private person can bring to the notice of authorities all encroachments on public land without having anything to do whether or not his rights are affected by such illegal encroachment. The Trial Court failed to appreciate the fact that all the respondents had failed to bring forth any evidence on record, either documentary or oral, to discharge the onus of proving the issues framed, whereas the appellant was able to discharge the onus placed on him and hence the impugned judgment is liable to be set aside. It is further contended that bad elements in the society will prosper at the cost of responsible citizens of the society and this itself is a sufficient ground for setting aside the impugned judgment and decree which is based on surmises and conjectures. The appellant has prayed for setting aside the impugned judgment and decree dated 29.08.2014 and also prayed for grant of mandatory and permanent injunction against the respondents as prayed in the suit.
RCA No. 92/14 Hazrat Hussain Vs. Nanak Chand & Ors. Page 9 of 18
10. The respondents did not file reply to the appeal and the respective counsel for respondents argued straightaway on the appeal.
11. Ld. Counsel for respondent no. 1 argued that issue of allotment of plots is challenged by respondent no. 2 by filing civil suits against the plot holders which are pending before different courts and on an interim application moved by the plot holders, the property has been directed to be desealed. The said order has been challenged by respondent no. 2 and the Ld. Appellate Court also directed the respondent no. 2 to deseal the premises and it shows that allotment was done with due process of law. He further argued that present appeal is beyond the scope of the suit and is liable to be dismissed.
12. The Ld. Counsel for respondent no. 2 argued that site in question was earmarked for site office of the respondent no. 2 and same having been illegally allotted by the respondent no. 1 without due procedure and consent of Slum and JJ Department, same has been sealed. She further argued that there are various other suits pending in different courts in respect of the plots in question where the legality of allotment is to be adjudicated upon and appellant has no locus standi to file the suit in respect of the suit land.
13. Ld. Counsel for respondents no. 3 to 5 also contended that appellant has no authority to file the suit and therefore the suit was rightly dismissed. He further contended that appellant failed to RCA No. 92/14 Hazrat Hussain Vs. Nanak Chand & Ors. Page 10 of 18 bring on record that he has any interest in the subject matter and further that the site in question was meant and earmarked for public park and same has been illegally encroached upon by the respondents no. 3 to 5. The Ld. Counsel for respondents no. 3 to 5 has prayed for dismissal of the appeal with cost.
14. I have heard the Ld. Counsel for parties and perused the record carefully. I have also gone through the written submissions filed by the parties. Trial Court record was also summoned and I have also perused the same.
15. It is borne out from the trial court record that appellant has based his suit on the premise that disputed land was earmarked for a public park in which he and his family members were having a legal right to have a facility of public park in the locality and by allocating the said park to the respondents no. 3 to 5, his legal vested right in the suit land has been violated and he has been deprived from enjoying the public park in the locality. On the other hand, the respondents challenged the locus standi of the appellant to file the suit contending that appellant has no right, title or interest in the suit land and has no concern with the same. The respondent no. 2/ Delhi Urban Shelter Improvement Board (DUSIB) (earlier known as Slum & JJ Department of MCD) claimed that the site in question was meant for site office of respondent no. 2 and was not earmarked for public park RCA No. 92/14 Hazrat Hussain Vs. Nanak Chand & Ors. Page 11 of 18 and, therefore, appellant cannot claim to have any interest in the said land being a member of the society.
16. Therefore, in these facts, it was incumbent upon the appellant to prove that the suit land was earmarked for the park and same having been encroached upon by the respondents no. 3 to 5 due to illegal allotment in their favour, his legal right to have a park in the locality has been infringed. However, the appellant has miserably failed to prove that land in question was earmarked for public park. He categorically stated in his crossexamination before the Trial Court that some officer of the MCD Slum and JJ had informed him that the suit property is meant for the park and they had not informed him that the suit property was earmarked for site office of the respondent no. 2. He further stated that he cannot say whether the suit property was meant for the site office or the park. He further categorically stated that his knowledge is based on the information given by the officers of the respondent no. 2. He also stated that the Area Engineer has not issued any document stating that the suit property is meant for park. He even did not know whether the suit property has been allotted by SUR Branch, now known as Rehabilitation Branch as per allotment policy.
17. From the aforesaid statement of the appellant in his cross examination, it is apparent that the appellant has not based his claim RCA No. 92/14 Hazrat Hussain Vs. Nanak Chand & Ors. Page 12 of 18 that suit site was meant for park on the basis of any documentary evidence or any official communication. Rather the said assertion was based on assumptions and presumptions which has no legal basis to stand for.
18. The Trial Court has rightly observed that, "Plaintiff has not been able to substantiate his belief or his knowledge that the open space/suit property was in deed earmarked as a space for the park for the locality people. The entire case of the plaintiff is based on presumption which does not exist at all. When there was no facility available at the first place, there is no question of anybody suffering for the lack of it as well." The Trial Court has further rightly observed that, "Incidental use of the vacant piece of land for the purpose of playing in the said land cannot entail any right having been vested in anyone for the usage of that land for the purpose of recreation or otherwise. Plaintiff himself has maintained that he is not before the court for the purpose of any public interest. Thus, he has to show that he has suffered a substantial grievance of his own beyond what is common with the rest of the public. Plaintiff cannot be stated to have suffered a legal injury by way of any direct act or omission on the part of any of the defendants wrongfully depriving him of any legal right which never existed in his favour at any point of time". RCA No. 92/14 Hazrat Hussain Vs. Nanak Chand & Ors. Page 13 of 18
19. I do not find any infirmity or illegality in the aforesaid observations made by the Trial Court since the appellant has miserably failed to prove on record that suit land was earmarked or allocated for public park and he has suffered any legal injury by the acts of the respondents on account of violation of his legal vested right being a member of locality in the suit land, more particularly when the appellant has not approached the Court for the purpose of any public interest.
20. Rather it has come on record from the office noting of the respondent no. 2 and evidence on record that suit land was earmarked for office site of respondent no. 2. It is also apparent that appellant has filed the present suit in his personal capacity on the ground that as he and his family members were having vested right of enjoyment of park in the suit land and this facility has been taken away by illegal allotment of the suit land. However, the appellant has failed to prove any such legal right vested in him, therefore he cannot be said to have locus standi to file the suit as rightly observed by the Ld. Trial Court.
21. The Ld. Counsel for appellant though has relied upon the judgment reported in Kalyan Singh Vs. Smt. Chhoti & Ors. AIR 1990 SC 396 to buttress his contention that even the action brought by a private person in respect of a public land was maintainable. RCA No. 92/14 Hazrat Hussain Vs. Nanak Chand & Ors. Page 14 of 18 However, the facts in the said case are distinguishable. In the said case, the suit property belonged to the community and in those circumstances, it was held by the Hon'ble Apex Court that, "Any member of a community may successfully bring a suit to assert his right in the community property or for protecting such property by seeking removal of encroachments therefrom. Such a suit need not comply with the requirement of O.1 R.8. The suit against alleged trespass even if it was not a representative suit on behalf of the community would be a suit of this category."
22. But in the present case, as discussed herein above the appellant has failed to prove that the suit land belonged to the public which was earmarked for public park. Therefore, the authority relied upon by the Ld. Counsel for appellant is not applicable in the present case.
23. It is also interesting to note that appellant has not challenged the findings and observations of the Trial Court in the present appeal. There is not a single whisper in the appeal that the appellant has succeeded in proving that suit property was meant for park and Trial Court has erred in appreciating the said fact. Rather whole case of the appellant in the present appeal is based on the premise that Trial Court has failed to take cognizance of the fact that plots which have been carved out from the area of the park has been RCA No. 92/14 Hazrat Hussain Vs. Nanak Chand & Ors. Page 15 of 18 illegally allotted to respondents no. 3 to 5 and despite the said fact the Trial Court did not interfere and it would set a precedent in allocating the plots to encroachers of the public land.
24. However, the appellant had not filed the suit for cancellation/declaration of the allotment of plots in favour of respondent no. 3 to 5 by respondent no. 1 and 2 as null and void. Though, respondent no. 1 claimed to have allotted the plots in favour of respondents no. 3 to 5 as per department policy which has been disowned by the respondent no. 2.
25. From the pleadings and evidence on record, it has come on record that respondent no. 1 who was Jr. Engineer of respondent no. 2/ Slum & JJ Department of MCD (now known as DUSIB) has claimed that the Rehabilitation Branch of respondent no. 2 as per department policy allotted the six plots bearing No. 1A, 2B, 3C, 4D, 5E & 6F, carved out from the suit land to the eligible persons in a draw and he has no role in allotting the plots and he has just handed over the possession of the aforesaid plots to the persons with the approval of the concerned branch of respondent no. 2. While, the respondent no. 2 disowned the said stand taken by the respondent no. 1 and claimed that the respondent no. 1 in connivance with Sh.Phillip Topo, Dy. Director of respondent no. 2 has illegally allotted the said plots without approval of respondent no. 2 and therefore the RCA No. 92/14 Hazrat Hussain Vs. Nanak Chand & Ors. Page 16 of 18 respondent no. 2 had sealed the said plots.
26. It has also come on record that various suits have been filed by the respondent no. 2 against the plot holders who as per the respondent no. 2 have been alloted the plots illegally by respondent no. 1 in connivance with one Sh. Philip Topo. It is pertinent here to note the respondent no. 2 had sealed the plots alloted to the persons including respondents no. 3 to 5 sometime in 2008 but on interim application u/o 39 rule 1 & 2 CPC filed by the allottees including the respondent no. 3 to 5 in the said civil suits, the court directed the respondent no. 2/ DUSIB to deseal the premises. The said order was challenged by the respondent no. 2/ DUSIB before the Appellate Court where the appeal was dismissed for nonprosecution and respondent no. 2/ DUSIB was directed to deseal the premises, but they failed to do so. The DUSIB challenged the order of the Appellate Court confirming the order passed on the application u/o 39 rule 1 & 2 CPC by filing a writ petition before the Hon'ble High Court vide CM (Main) No. 299 of 2012. However, the Hon'ble High Court vide order dated 20.05.2014 dismissed the said writ petition with cost and directed to deseal the property forthwith.
27. In view of aforesaid facts also, since the premises/plots allotted to respondent no. 3 to 5 got sealed by the respondent no. 2/DUSIB and same has been directed to be desealed by the RCA No. 92/14 Hazrat Hussain Vs. Nanak Chand & Ors. Page 17 of 18 different courts which has also been confirmed by the Hon'ble High Court of Delhi and further litigations in respect of the said plots are pending in different civil courts, where the issue of allotment whether legal or illegal is to be adjudicated upon, and therefore also there was no occasion for the Trial Court to give any such directions as sought by the appellant in the present appeal which was also beyond the scope of the present suit.
28. Keeping in view the entire facts and circumstances of the case, in my considered opinion, there is no illegality or infirmity in the conclusions arrived by the Ld. Trial Court. The impugned judgment is well reasoned and the present appeal filed against the impugned judgment is devoid of any merit. Hence, appeal is hereby dismissed. No order as to cost. Decree sheet be prepared accordingly.
Appeal file be consigned to Record Room.
TCR be sent back to the Trial Court along with copy of this judgment.
Announced in the open Court (Balwant Rai Bansal)
on 29th April, 2015 Addl. District Judge 02 (SouthEast)
Saket Courts, New Delhi
RCA No. 92/14
Hazrat Hussain Vs. Nanak Chand & Ors. Page 18 of 18
RCA No. 92/14
Hazrat Hussain Vs. Nanak Chand & Ors.
29.04.2015
Present: Appellant in person.
Respondent no. 1 in person.
None for respondent no. 2.
Respondent no. 3 and 4 in person with proxy counsel. Written submissions filed on behalf of respondents no. 3 to 5 on 28.04.2015. Appellant and other counsel have already advanced the arguments. Appellant has also filed the written submissions on record.
Put up at 2.00 PM for orders.
(Balwant Rai Bansal) ADJ02/SE/Saket/New Delhi At 2.25 PM Present: Appellant in person.
Respondent no. 1 in person.
Counsel for respondent no. 2.
Respondent no. 3 and 4 in person.
Vide my separate judgment of even date announced in the open court, the appeal filed by the appellant is dismissed. No order as to cost. Decree sheet be prepared in terms of the judgment.
Appeal file be consigned to Record Room.
TCR be sent back to the Trial Court along with copy of judgment.
(Balwant Rai Bansal) ADJ02/SE/Saket/New Delhi 29.04.2015 RCA No. 92/14 Hazrat Hussain Vs. Nanak Chand & Ors. Page 19 of 18