Delhi District Court
Sh. Kishore Sethi vs Union Of India on 26 June, 2015
IN THE COURT OF Dr. KAMINI LAU: ADDL. DISTRICT JUDGEII:
(CENTRAL DISTRICT): TIS HAZARI COURTS: DELHI
CS No. 139/2015
Unique Case ID No.: 02401C1476982008
1. Sh. Kishore Sethi
S/o Sh. Manohar Lal Sethi
R/o B38, Mahatma Gandhi Road,
Adarsh Nagar, Delhi - 110033
2. Ms. Shashi Sethi
W/o Sh. Mahender Kumar Sethi
R/o C9, Panchvati, Delhi - 110033
......... Plaintiffs
Versus
1. Union of India
Through the Secretary
Ministry of Works, Housing and Urban Development,
Nirman Bhawan, New Delhi
2. Delhi Development Authority
Through its Vice Chairman,
Vikas Sadan, New Delhi
3. Gaon Sabha, Bharola
Through the Deputy Commissioner,
North District,
5, Sham Nath Marg,
Delhi - 110054
......... Defendants
Date of Institution: 21.8.2004
Judgment Reserved on 21.5.2015
Judgment Pronounced on: 26.5.2015
Kishore Sethi Vs. DDA & Ors., CS No. 139/15 Page No. 1 of 16
JUDGMENT (Oral):
This suit for Declaration of Title and for Possession has been filed by the plaintiffs against the defendants. Case of the plaintiff:
The case of the plaintiff is that Khasra No. 262/258/217/4 comprised in 3 different mins measuring 88 Bighas 2 Biswas, 2 Bighas 8 Biswas and 25 Bighas aggregated to 115 Bighas 10 Biswas in the Revenue estate of village Bharola, North District, Delhi. It is pleaded that recorded Bhumidars of the said land i.e. Sh. Thakur Das, Shri Shiv Nath Singh, Shri Balbir Singh, Shri Sanjiv and others sold 1/4th share of this land to M/s. Capital Housing Company, a colonizer Company before coming into force of Delhi Land Reforms Act. According to the plaintiffs, this company carved out plots thereupon and sold to many prospective buyers and after getting NOC from competent Authorities and around this residential colony, thousand of residential houses as part of Adarsh Nagar Extension have come up and the MCD has also regularized this colony of colonizer known as part of Adarsh Nagar Extension vide resolution No. 1101of 14.02.1980. It is further pleaded that the plaintiff had purchased a plot of land with superstructure known as Plot No. 1F, measuring 240 Square Yards in Block 'C', Acharya Kirplani Road, Adarsh Nagar, Delhi on 25.8.1998 out of Khasra No. 262/258/217/4/3 for an amount of Rs.3,50,000/. According to the plaintiffs, the said property is also assessed to the property tax and was Kishore Sethi Vs. DDA & Ors., CS No. 139/15 Page No. 2 of 16 provided with regular electricity and water connection.
According to the plaintiff, on 19.06.2003 DDA demolished the superstructure on plaintiff's plot by deploying Bulldozer on the plea that the land is a Government Land and construction by plaintiff is an encroachment. It is further pleaded that the DDA claimed ownership on the basis of one notification dated 20.08.1974 vesting thereunder all Gaon Sabha land of village Bharola in Union of India. It is also pleaded that some of the owners of adjoining property who had been threatened with demolition of thier properties by the DDA in the year 199798 had filed a Civil Writ Petition bearing No. 1092 of 1997 before the Delhi High Court under the title 'Smt. Kaushalya Devi & Ors. Vs. Delhi Development Authority' and CWP No. 857/1998 titled as 'Rishi Prakash & Ors. Vs. DDA' wherein the Hon'ble Delhi High Court had been pleased to issue Rule and restrained the DDA against demolition and dispossession of the plaintiff from his plot. Later, on 19.6.2003 the plaintiff also filed a Civil Suit for relief of injunction wherein the defendant DDA by its Written Statement claimed the ownership of the land on the basis of the notification dated 20.8.1974 which claim had already been adjudged invalid in previous litigations and being subjudice before the Delhi High Court in two Writ Petitions pending final decisions. It is further pleaded that the plaintiffs also filed a CWP No. 5614 of 2003, which was dismissed on 03.09.2003 holding that a number of disputed facts, which required evidence were involved. The plaintiffs then issued the statutory notice upon the defendants in terms of Section 80 CPC and Section 53B of Kishore Sethi Vs. DDA & Ors., CS No. 139/15 Page No. 3 of 16 the DDA Act and also against the Gaon Sabha on 10.3.2004. According to the plaintiffs in the meantime the plaintiff also applied for demarcation of their plot in the court of SDM/ RA under Section 22 of the Land Revenue Act and on the demarcation on 19.04.2004, it was found that 115 Bighas 2 Biswas land in 3 min of Khasra No. 262/258/217/4 is in private ownership and it falls in Adarsh Nagar Colony whereas the DDA carried out the demolition without any revenue demarcation and by considering the land as a park. It is pleaded that the officials then adjourned the proceedings examining the title deed of the plaintiffs and others for the next date but the DDA officials, though present on 19.4.2004 refused to join the demarcation proceedings on the plea that their superior officers had directed them not to show their presence in the proceedings of demarcation of land of which demolition had been carried out.
It is further pleaded that now the employees of the DDA have started digging trenches on plaintiff's land indicating that they were not willing to concede to the plaintiffs claim and on inquiry from the labourers engaged by the DDA the plaintiffs came to know that the trenches are being dug for plantation of trees by the DDA due to onset on Monsoon which act of DDA is a clear denial of defendant to restore back plaintiff's land. According to the plaintiffs, the defendants have no right, title or interest to holds claim and forcibly occupy the plaintiff's land but the defendant being statutory authorities have taken possession and demolished the structure in colourable exercise of their power. Hence the present suit is filed by the plaintiff. Kishore Sethi Vs. DDA & Ors., CS No. 139/15 Page No. 4 of 16 Case of the Defendants:
The defendant No. 2 has filed its Written Statement wherein various preliminary objections have been raised regarding the plaintiffs having not come to the Court with clean hands and the suit being not maintainable as against the true owner. It was also alleged that the suit was not been properly valued for purposes of Court Fees and that it was barred under Order 1 Rule 8 CPC.
On merits it is pleaded that Khasra No. 262/258/217/4 of village Bharola has been placed at the disposal of DDA vide notification No. SO 2190 dated 20.08.1974 and had been further transferred to Horticulture Department of DDA. The defendant No.2 has denied that Sh. Thakur Dass, Sh. Shiv Nath Singh etc. were the recorded bhoomidars or that they sold 1/4th share to M/s Capital Housing. It has also been denied that this company carved out plots in the shape of residential colony and sold the same to various prospective buyers. It is pleaded that the suit land has been shown placed in revenue record as Gaon Sabha land and as such question of selling the land to M/s. Capital Housing does not arise. It is further pleaded that MCD has no right to regularize the colony vide resolution No. 1101 dated 14.02.1980. The defendant no.2 DDA has also denied that the plaintiff had purchased a plot of land with superstructure and stressed that M/s. Capital Housing had no right to carve out and plot over the land belonging to the DDA and the sale, if any, made by any person is illegal, unlawful and void abinitio. According to the DDA, the suit land had been placed at the Kishore Sethi Vs. DDA & Ors., CS No. 139/15 Page No. 5 of 16 disposal of the DDA vide SO No. 2190 dated 20.8.1974 and the DDA had every legal right to protect their land and hence a demolition programme was arranged on 19.6.2003 and unauthorized encroachments found on the DDA land were removed on the same. It is pleaded that now the suit land is under the possession and control of DDA and a boundary wall has been constructed at the side by the DDA/ Engineering staff. The defendant DDA has also denied that the claim of the defendant over the suit land on the basis of the notification has already been adjudged and unproved, untenable and illegal in Civil Suits and rather the SLP No. 5184/2002 filed by Smt. Pushpa Sharma against DDA was dismissed by the Hon'ble Supreme Court of India. The defendant no.2 DDA has denied all the allegations made by the plaintiff in the plaint and prayed that the suit of the plaintiff be dismissed.
ISSUES FRAMED:
The plaintiffs filed their replication to the Written Statement filed by the defendant, wherein they have reaffirmed what has been earlier stated in the main plaint. Thereafter, vide order dated 31.03.2006 following issues were framed by the Ld. Predecessor of this Court:
1. Whether the plaintiff is entitled for the relief of declaration as asked for? (OPP)
2. Whether plaintiff is entitled for the relief of possession, as asked for? (OPP)
3. Whether the suit has not been properly valued for the Kishore Sethi Vs. DDA & Ors., CS No. 139/15 Page No. 6 of 16 purposes of court fees and jurisdiction? (OPD)
4. Whether the suit is barred by order 1 rule 8 CPC? (OPD)
5. Relief.
EVIDENCE:
The plaintiff no.1 Kishore Sethi has examined himself as his own witness as PW1 and in his examination in chief by way of affidavit he has corroborated what has been earlier stated in the main plaint. He has placed his reliance on the Khatauni issued by the Patwari on 15.5.1997 which is Ex.PW1/A; Title Deed in favour of the plaintiffs along with the Deeds in favour of earlier owners which are Ex.PW1/B collectively; site plan of the property in question which is Ex.PW1/C; order of the Delhi High Court dated 3.9.2003 which is Ex.PW1/D; legal notice dated 10.3.20014 along with AD cards and receipts which are Ex.PW1/E collectively; demarcation proceedings dated 25.6.2004 along with Khatauni in respect of Khasra No. 262/258/217/4 dated 24.11.2004 which are Ex.PW1/F collectively; order dated 30.3.1990 which is Ex.PW1/G and permission/ NOC which is Ex.PW1/H. The plaintiff has also examined Sh. Arvind Kumar, Patwari, Model Town as PW2 who has proved the Khatauni for the year 19881989 in respect of Khasra No. 262/258/217/4 min (8802), 263/258/217/4 min (208), 262/258/217/4 min (2500), which is Ex.PW1/A according to which the Kishore Sethi Vs. DDA & Ors., CS No. 139/15 Page No. 7 of 16 Khasra No. 262/258/217/4 min (6108) belongs to Ram Swarup S/o Govind Sahay. In his crossexamination a specific question was put to the witness that the above land situated within the Revenue Estate of Village Bharola belongs to Gram Sabha and the Central Government has placed the same at the disposal of DDA under Section 22(1) of the DD Act through notification No. SO 2190 dated 20.8.1974, which the witness has denied.
Kanoongo Trilok Chand (PW3) has proved the demarcation proceedings dated 25.6.2004 which is Ex.PW3/A. In his crossexamination the witness has admitted that he does not have any documents to show the issuance of the notices to the DDA about the said demarcation.
Prem Singh (PW4) Retired Kanoongo Model Town has also proved the demarcation report which is Ex.PW1/F according to which the land in dispute belongs to the private owners. In his crossexamination he has admitted that he has not brought the original record of demarcation and cannot tell if the demarcation was carried out as per the court orders or not. He has admitted that the demarcation carried out was not as per the orders passed by the Court and the same was conducted on the written application of Sh. R.K. Sharma President of Residents Welfare Association, Adarsh Nagar.
On the other hand the defendant no.2 DDA has examined Mohinder Singh Kanoongo as D2W1 who in his examination in chief by way of affidavit has corroborated what has been earlier stated in the written statement. He has placed his reliance on the following documents:
Kishore Sethi Vs. DDA & Ors., CS No. 139/15 Page No. 8 of 16
1. Copy of notification dated 20.08.1974 which is Ex.D2W1/1.
2. Copy of order dated 10.07.2003 passed by the Honb'le Supreme Court which is Ex.D2W1/2.
3. Copy of affidavit of Shri Dharmendera, Commissioner (LM) filed in SLP Re: Pushpa Sharma Vs. DDA which is Ex.D2W1/3.
4. Copy of transfer documents to Horticulture Deptt. of DDA which is Ex.D2W1/4 colly.
5. Copy of Khatauni and part Akshizra of village Bharolla which is Ex.D2W1/5 Colly.
6. Kabza Karyawahi of schedule of land which is transferred to Horticulture Department which is Ex.D2W1/6.
7. Copy of resolution No. 1101 dated 14.02.1980 of the Standing Committee of MCD which is Ex.D2W1/7.
8. Layout plan of Adarsh Nagar which is Ex.D2W1/8.
In his crossexamination the witness has denied that Sh. Thakur Dass, Shiv Nath, Balbir Singh and Sanjeev etc. are the recorded owners of the land in question and has stated that as per the notification no. SO/2190 dated 20.8.1974 DDA is the owner of the suit property. He is unable to tell anything about the land which has been given to DDA vide the above notification but has stated that the DDA is in possession of 12 Bigha of land out of Khasra No. 262/258/217/4 min. He has stated that he has no knowledge if Sh. Thakur Dass etc. had sold out their 1/4th share to M/s. Kishore Sethi Vs. DDA & Ors., CS No. 139/15 Page No. 9 of 16 Capital Housing Company.
D2W3 Deepak from Police Station Kamla Market has proved the photocopies of the site plans which are Ex.D2W3/1 & Ex.D2W3/2. According to him, the resolution No. 1101 dated 14.2.1980 of the Standing Committee of the MCD is not available with him and the document Ex.D2W3/1 was seized from the MCD is FIR No. 14/12, under Sections 466, 468 & 471 IPC from Sh. P. Dinesh, Deputy Town Planner. In his cross examination the witness has explained that the said documents were seized on the complaints of MCD officials in the aforesaid FIR and investigations in the said case are still pending.
D2W4 Abhay Singh Record Incharge from MCD has brought the summoned record i.e. the Resolution No. 1101 dated 14.2.1980 of the Standing Committee MCD copy of which is Ex.D2W4/1. In his cross examination the witness has deposed that he has no personal knowledge about the resolution Ex.D2W4/1.
FINDINGS:
I have heard the arguments advanced before me and have gone through the records of the case. My findings on the various issues are as under:
Issue No.1 Whether the plaintiff is entitled for the relief of declaration as asked for? (OPP) Issue No.2: Whether plaintiff is entitled for the relief of possession, as asked for? (OPP) Kishore Sethi Vs. DDA & Ors., CS No. 139/15 Page No. 10 of 16 Both the issues are clubbed together to the sake of convenience involving common discussion and being interlinked. Onus of proving both the issues was upon the plaintiffs. The case of the plaintiffs is that they had purchased a plot no. 1F measuring 240 Square Yards in Block C Acharya Kriplani Road, Adarsh Nagar, Delhi on 25.8.1998 out of Khasra no. 262/ 258/217/4/3. According to the plaintiffs M/s. Capital Housing Company, a Colonizer Company, which had 1/4th share in khasra no. 262/258/217/4/3 of Village Bharola, Delhi, before coming into force of Delhi Land Reform Act, carved out plots after getting a No Objection Certificate from the competent authority, Delhi, under the Delhi Land (restriction on transfer) Act, 1972 and sold it to many people. In order to show that M/s. Capital Housing Company, a coloniser company, had 1/4th share in khasra no. 262/258/217/4/3 of Village Bharola, Delhi the plaintiff proved the Khatoni of the year 198889 of Village Bharola, Delhi which is Ex.PW1/A according to which Sh. Thakur Dass and Sh. Shiv Nath S/o Sh. Inderjit Singh having 3/16 share each; Sh Balbir Singh s/o sh Ram Singh having 1/5 share; Sh. Rajiv, Sh. Sanjiv and Sh. Pawan all sons of Sh. Tara Chand having 1/5 share each; Sh. Jaswant Singh, Sh. Basant Singh and Sh. Jai Prakash all sons of Sh. Nain Singh having 3/5 share each; Sh. Ram Swaroop S/o Sh Govind having 3/32 share; Sh. Fakir Chand and Sh. Brijnandan S/o Sh Ram Swaroop having 9/32 share and Capital Housing Company having 1/4 share were joint khatedaar in respect of land comprising in khasra no. 262/258/217/4/3 measuring 88 bighas & 2 biswas ; khasra no. 262/258/217/4/3 measuring 2 bhighas and 8 Kishore Sethi Vs. DDA & Ors., CS No. 139/15 Page No. 11 of 16 biswas & khasra no. 262/258/217/4/3 measuring 25 bhighas of Village Bharola, Delhi. Apparently, M/s. Capital Housing Company had 1/4th share jointly with other Khatedaars in the land forming part of khasra no. 262/258/217/4/3 of Village Bharola, Delhi. However, it has not been mentioned or even proved by the plaintiff that the joint khatedaars had ever partitioned the land and identified their share before M/s. Capital Housing Company sold the properties by cutting plots. Also, the other Khatedaars were a necessary party in the present suit since apparently no partition between the joint khatedaar had taken place. Though the plaintiff has filed salepurchase documents in the form of registered sale deed executed by N.D. Gupta in favour of K.K. Gupta and KK Gupta in favour of the plaintiff, but no salepurchase document executed by M/s. Capital Housing Company in favour of Sh. N.D. Gupta has been placed on record to prove the genuineness of the sale executed in favour of the plaintiff.
On the other hand as per the claims of the defendant no.2 DDA the Khasra No. 262/258/217/4 min of Village Bharola has been placed at the disposal of the DDA vide notification SO No. 2190 dated 20.8.197 and further transferred to Horticulture Department of DDA for maintaining as green. It is the case of the defendant DDA that the suit land has been shown in the Revenue Records as Gaon Sabha land and hence the question of selling the suit land to M/s. Capital Housing does not arise. It is admitted by the defendant DDA that a demolition programme was arranged on 19.6.2003 and unauthorized encroachments found on the DDA land were removed on the Kishore Sethi Vs. DDA & Ors., CS No. 139/15 Page No. 12 of 16 same day and the land is under the possession and control of DDA and a boundary wall has been constructed at the site by the DDA Engineering Staff and is free from any encroachment. It is argued that the present plaintiff along with six other persons had filed similar suits on the same facts claiming the same relief which suits were tried jointly and the Ld. Civil Judge Ms. Snigdha Sarvaria vide judgments and decree dated 29.1.2014 dismissed all the six suits but since the plaintiff valued the present suit more than Rupees Three Lacs therefore the Hon'ble Court transferred the present suit. It is pointed out that no new evident or document has been filed by the parties in the present suit except which has already been filed before the Court of Ms. Snigdha Sarvaria, Ld. Civil Judge (Central), Delhi. Ld. Counsel for the defendant DDA has relied upon the judgments passed by Ms. Snigdha Sarvaria, Ld. Civil Judge and also relied upon in the case of Rajender Kakkar & Ors. Vs. DDA reported in 1994 (I) AD (Delhi) 432 wherein the Hon'ble Division Bench of the Delhi High Court has dealt with the notification SO No. 2190 dated 20.8.1974 and dismissed the Writ Petitions.
I may observe that after operation of the Delhi Development Act, 1957 no person has any right to develop the land and carve out plots for residential or any other purpose. Further, the MCD has no right to regularize the colony vide resolution No. 1101 dated 14.2.1980 and M/s. Capital Housing has also no right to carve out any plot over the land belonging to the DDA and if any sale is made by any person, is illegal, Kishore Sethi Vs. DDA & Ors., CS No. 139/15 Page No. 13 of 16 unlawful and voidabinitio and the DDA has every legal right to protect their land.
Further, the No Objection Certificate received from the competent authorities under the provisions of The Delhi Land (restriction on transfer) Act, 1972 has also not been placed on record. The plaintiff has also not placed on record any demarcation report or any other document to prove as to which area forms part of Khasra no. 262/258/217/4/3, which is alleged to be plot no. 1F measuring 240 Square Yards in Block C Acharya Kriplani Road, Adarsh Nagar, Delhi on 25.8.1998 purchased by him. Therefore, the description of the said suit property is vague and unidentified.
It is a settled law that the relief of Declaration is a discretionary relief and the court exercises in discretion of that party which approaches the court with clean hands. Equity does not demand that its suitors shall have led blameless lives. The maxim withholds assistance of Court where the wrongdoer is trying to enjoy the fruits of his own wrong. It is a selfimposed ordinance that closes the door of a Court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief. A party who seeks equity must bring on record the entire facts of his case supported by documentary proof. It has been held in the case of Executive Committee of Vaish Degree College, Shamli Vs. Lakshmi Narain reported in AIR 1976 SC 888 that the relief of Declaration and Injunction under the provisions of the Specific Relief Act is purely discretionary and the plaintiff cannot claim it as right. The relief has to be granted by the Court according Kishore Sethi Vs. DDA & Ors., CS No. 139/15 Page No. 14 of 16 to sound legal principles and ex debito justitiae. The Court has to administer justice between the parties and cannot convert itself into an instrument of injustice or an engine of oppression. In these circumstances, while exercising its discretionary powers the Court must keep in mind the well settled principles of justice and fair play and should exercise the discretion only if the ends of justice require it, for justice is not an object which can be administered in vacuum. Clearly, if a party suppresses material facts from the court then the relief of injunction and declaration cannot be granted to that party.
In view of my above discussion, I hereby hold that the plaintiffs have failed to prove their case and are not entitled to the relief of Declaration as prayed for and hence are also not entitled to the relief of Possession as asked for in the plaint.
Issues are decide in favour of the defendants and against the plaintiff.
Issue No.3: Whether the suit has not been properly valued for the purposes of court fees and jurisdiction? (OPD) Issue No.4: Whether the suit is barred by order 1 rule 8 CPC? (OPD) Both the above issues are clubbed together for the sake of convenience involving common discussion and being interlinked. Onus of proving both the issues was upon the defendant no.2 DDA. However, the defendant has neither led any evidence in this regard nor otherwise proved Kishore Sethi Vs. DDA & Ors., CS No. 139/15 Page No. 15 of 16 these issues. Only vague allegations were made in the Written Statement however, in the affidavit of evidence the witness of the DDA namely Mohinder Singh (D2W1) has not pressed this aspect in this regard. Both the issues are accordingly decided in favour of the plaintiff and against the defendants.
Relief:
In view of the above discussion, I hold that the plaintiffs are not entitled to the relief of Declaration as prayed for and hence are also not entitled to the relief of Possession as asked for in the plaint. CONCLUSIONS:
In view of my findings on the various issues, I hereby hold that the plaintiffs have failed to prove their case and are not entitled to the relief of Declaration as prayed for and hence are also not entitled to the relief of Possession as asked for in the plaint. The suit of the plaintiffs is hereby dismissed. No orders as to costs. Decree sheet be prepared accordingly.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU) Dated: 26.5.2015 ADJII(CENTRAL)/ DELHI Kishore Sethi Vs. DDA & Ors., CS No. 139/15 Page No. 16 of 16