Delhi District Court
Sdm/Ra (Alipur) vs Jinender Kumar Jain on 6 November, 2023
IN THE COURT OF ADDITIONAL DISTRICT JUDGE-02:
NORTH ROHINI COURTS COMPLEX: DELHI
MCA DJ No. 28/23
IN THE MATTER OF:-
SDM/RA (Alipur)
DM Office Complex,
At Alipur, Delhi-110036
Vs.
Jinender Kumar Jain
S/o Sh. Jugmander Dass Jain
R/o 23/6, Main Road, Shakti Nagar,
Delhi
06.11.2023
Date of institution : 06.04.2023
Date of Conclusion of Argument : 31.10.2023
Date of Order/Judgment :06.11.2023
ORDER/JUDGMENT
1. Vide this order, I shall dispose of the misc. appeal filed by
the appellant/defendant no 1. In the present appeal parties shall be
referred as per their original status before learned trial Court.
2. By way of the present appeal, the appellant(defendant no. 1
before the Ld. Trial Court) has assailed the orders dated 23.02.2023
passed in suit bearing no. 1603/2022 by the court of the Ld. Senior Civil
Judge(North), Rohini Courts, Delhi whereby the injunction application
of the plaintiff(respondent before this court) u/o XXXIX Rules 1 and 2
of the CPC was allowed and the application of the appellant(defendant MCA DJ No. 28/23 SDM/RA (Alipur) Vs. Jitender Kumar Jain page 1 of 10 no. 1 before the Ld. Trial Court) u/o XXXIX Rule 4 of the CPC was dismissed.
CASE OF PLAINTIFF BEFORE THE LD. TRIAL COURT
3. Plaintiff before the Ld. Trial Court instituted the above said suit for permanent injunction seeking restraining defendants or their officials from demolishing or taking punitive action qua suit property, on the ground that he was the owner and in actual physical possession of the land falling in Khasra nos. 21/8(4-15), 21/9(4-14), 21/13 min(3-8), 21/26(0-3) and 21/27 min(5-16-12) situated within the revenue estate of village Bakoli, Delhi(herein after referred to as suit property) specifically shown in red colour in the site plan annexed with the plaint. The plaintiff further asserted in the plaint that the erstwhile owner of the land had raised a construction in shape of boundary wall and the same was done in the year 2004-2005 for the protection of agricultural produces from stray animals and cattles. Erstwhile owner had put tin shed upon the portion of the boundary wall in a part of the suit property which was used for storage of grains/ pulses/ wheat/ cereals and other agricultural produces. It was further asserted in the plaint that since there was open space in between the boundary wall and the tin shed, so, the agricultural produces were often damaged due to rains, sun rays and birds and as such, the plaintiff, with a view to utilize the property properly and for safety of agricultural produces, further raised boundary wall to tin shed and some more tin sheds were also put in by the plaintiff from the said boundary wall to the old existing tin sheds. It has been further stated that the plaintiff and other associated farmers are indulged in the business of storage of agricultural produces and supply of food grains. It was further MCA DJ No. 28/23 SDM/RA (Alipur) Vs. Jitender Kumar Jain page 2 of 10 asserted in the plaint that on 29.11.2022, the officials from the office of the defendant no. 1 i.e. SDM Alipur visited the suit property and pasted a notice upon the suit property. It was further asserted that the notice was immediately removed after taking the photographs without supplying any copy of the notice to the employee of the plaintiff. It was further stated in the plaint that the officials of the defendant no. 1 told the employees of the plaintiff that punitive action shall be taken against the construction of the property in the coming days without any prior intimation. It was further stated that on 30.11.2022, the plaintiff visited the office of the defendant no. 1 and requested the concerned officials to show or supply a copy of the notice but of no use. It was further stated that Delhi Land Reforms Act was not applicable to the suit property as the lands falling in Village Bakoli, Delhi were already included in the modification of master plan of DDA in MPD 2001. It was further stated that the defendant no. 1 was not competent to issue any notice for demolition of the suit property. It was further stated that village Bakoli was falling in 'Low Density Residential Area' as notified by the Govt. of India vide notification dated 18.06.2013. It was further stated that the ratio of the judgment titled as Sushma Kapoor Vs. Govt. of NCT of Delhi And Anr. Cited as 2021SCC Online DEL 5170 was squarely applicable to the facts and circumstances of the present suit.
CASE OF DEFENDANT NO. 1 BEFORE THE LD. TRIAL COURT
4. Written statement was filed by the appellant (defendant no. 1 before the Ld. Trial Court) stating therein that the suit of the plaintiff was without any cause of action . It was further stated that one Special MCA DJ No. 28/23 SDM/RA (Alipur) Vs. Jitender Kumar Jain page 3 of 10 Task Force was constituted by the Hon'ble LG of Delhi and the SDM/RA concerned was made the convener of the said STF. It was further stated that the Task Force was competent to issue restraint orders against the illegal construction raised on Public or Private Land. It was further stated that it was immaterial whether the land was a gram sabha land or notified under the Delhi Municipal Corporation Act. It was further stated that the SDM rightly issued a Restrainment Order dated 12.11.2022 against the suit property. It was further stated that the plaintiff, without having any permission from the competent authority, was raising huge construction in the shape of permanent structures (Godowns) on the suit property and that the said construction was in direct contravention of the judgment of the Hon'ble High Court of Delhi in the case titled as G.S. Nankheri Vs. Sucheta Memorial Trust which ordered that the boundary wall shall not exceed 5ft in height for protection of the agricultural produce.
FINDINGS IN IMPUGNED ORDERS DATED 23.02.2023
5. The ld. trial court has returned a finding that restrainment order dt. 12.11.2022 was issued in the capacity as SDM/Revenue Assistant. Secondly. Notification dt. 30.03.2011 is not applicable to the facts of the present case as the STF & SDM could only remove encroachment from Gaon Sabha Land. Thirdly, a finding relying upon Sushma Kapoor's case has been returned that since village Bakoli is shown at serial no. 19 of the notification the village was in low density residential area. The plaintiff's application was allowed and defendants were restrained from demolishing/removing or taking punitive action MCA DJ No. 28/23 SDM/RA (Alipur) Vs. Jitender Kumar Jain page 4 of 10 against suit property till the disposal of the suit without due process of law.
ARGUMENTS OF APPELLANT /DEFENDANT NO 1
6. Ld. counsel has argued that the user of the land is agricultural and thus the provisions of Delhi Land Reforms Act will apply.
7. It is argued that in the site plan the suit property has been shown to be vacant land which is incorrect.
8. It is argued that the case of Sushma Kapoor is distinguishable in as much as the user of the present land in dispute is agricultural as stated in para no. 3 & 4 of the plaint itself. Further Section 54 c of THE DELHI DEVELOPMENT ACT, 1957 was relied upon by appellant to contend that DDA act is not applicable on building used for agricultural purpose. Contention is therefore Delhi Land Reforms Act applies.
ARGUMENTS OF PLAINTIFF/ RESPONDENT
9. It is argued that provisions of Delhi Land Reforms Act does not apply as village Bakoli was declared as a low density residential area by the notification dt. 18.06.2013.
10. Heavy reliance can be placed upon case titled as Sushma Kapoor Vs. Govt. of NCT of Delhi reported in 2011 SCC Delhi online 5170 to contend that once notification dt. 18.06.2013 (modification of master plan) is issued the land will come out of purview of Delhi Reforms Act.
11. It is further argued that the question of user is irrelevant once notification dt. 18.06.2013 issued by DDA holds the field.
MCA DJ No. 28/23 SDM/RA (Alipur) Vs. Jitender Kumar Jain page 5 of 10
12. It is further argued that Section 1 (2) b of Delhi Land Reforms Act provides that the Act shall not apply to estate owned by any Local authority. As per the plaintiff either DDA or MCD is the local authority which has control over the land in question.
13. Reply to the grounds of appeal before this court the counsel for respondent/plaintiff has argued as under :
14. In reply to Ground A & J of the appeal it has been argued that the site plan and the pleadings are to be read in conjunction and in pleadings it has been mentioned that construction is being made(para 3 of plaint).
15. In reply to Ground B to H, N of the appeal it has been argued that these grounds are not sustainable in view of law laid down in Sushma Kapoor' case (supra).
16. Ld. counsel for the respondent has relied upon the judgement Skyline Education Institute (India) Pvt. Ltd Vs. S.L.Vaswani & Anr. Reported on (2010) 2 Supreme Court cases 142 in which it is held that "the ratio of the above noted judgments is that once the court of first instance exercises its discretion to grant or refuse to grant relief of temporary injunction and the said exercise of discretion is based upon objective consideration of the material placed before the court and is supported by cogent reasons, the appellate court will be loath to interfere simply because on a de novo consideration of the matter it is possible for the Appellate Court to form a different opinion on the issues of prima facie case, balance of convenience , irreparable injury and equity. No other argument was raised by either of the counsel.
MCA DJ No. 28/23 SDM/RA (Alipur) Vs. Jitender Kumar Jain page 6 of 10 SCOPE OF INTERFERENCE IN APPEAL AGAINST ORDER 39 RULE 1 AND 2 CPC:
17. The purpose of an interlocutory injunction is to preserve the status quo until the rights of the parties have been determined in an action/suit. The grant or non grant of temporary injunction is regulated by the trinity principles of prima facie case, irreparable injury and balance of inconvenience. Further the scope of interference by the first appellate court with the discretion exercised by the trial court in injunction matter is also limited. Instead of referring to all the judicial precedent laid down by the apex court in this regard, it would be apposite to refer to the case of Wander Ltd. v. Antox India (P) Ltd 1990 (Supp.) SCC 727 , where the apex court was called upon to determine the scope of appellate court's power to interfere with the discretion exercised by the court of first instance in granting or refusing the prayer for temporary injunction, wherein it was observed that :
"... In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be MCA DJ No. 28/23 SDM/RA (Alipur) Vs. Jitender Kumar Jain page 7 of 10 justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion."
FINDINGS
18. This Court has carefully heard the rival contentions of parties, has perused the case record with their assistance. Bearing the aforesaid principles in mind, the impugned order may be analyzed in the light of contentions raised by the parties. Plaintiff has prayed for permanent injunction restraining defendants from taking any punitive action over suit property. This Court is of considered opinion that provisions of Delhi Land Reforms Act do not apply as village Bakoli was declared as a low density residential area by the notification dt. 18.06.2013. Record has been carefully perused. village Bakoli is mentioned in notification dt. 18.06.2013 at serial no 19.
19. This Court is of considered opinion that case titled as Sushma Kapoor Vs. Govt. of NCT of Delhi reported in 2011 SCC Delhi online 5170 covers case of plaintiff. Once notification dt. 18.06.2013 ( modification of master plan) is issued the land will come out of purview of Delhi Reforms Act. This Court is of considered opinion that the question of user is irrelevant once notification dt. 18.06.2013 issued by DDA holds the field. Further Section 1 (2) b of Delhi Land Reforms MCA DJ No. 28/23 SDM/RA (Alipur) Vs. Jitender Kumar Jain page 8 of 10 Act provides that the Act shall not apply to estate owned by any Local authority. As per the plaintiff either DDA or MCD is the local authority which has control over the land in question. Thus Delhi Reforms Act will not apply to the suit property. Contention of appellant that Section 54 c of The Delhi Development Act, 1957 provides that DDA act is not applicable on building used for agricultural purpose. So therefore Delhi Land Reforms Act applies is rejected in view of the law laid down in case titled as Sushma Kapoor Vs. Govt. of NCT of Delhi reported in 2011 SCC Delhi online 5170.Once village Bakoli is mentioned in notification dt. 18.06.2013 at serial no 19, provisions of Delhi Land Reforms Act do not apply.
20. This Court is of considered opinion that not showing of construction in the site plan is inconsequential. The pleadings are to be read in conjunction with site plan. In pleadings it has been mentioned that construction exists(para 3 of plaint).
CONCLUSION
21. Thus in totality of circumstances this court, is of considered opinion that no ground to interfere with the exercise of discretion of the court of first instance is made out. The discretion exercised by learned trial Court has not been shown to have been exercised arbitrarily, capriciously, perversely or in ignorance of the settled principles of law regulating grant or refusal of interlocutory injunctions.
MCA DJ No. 28/23 SDM/RA (Alipur) Vs. Jitender Kumar Jain page 9 of 10 RELIEF
22. The appeal is dismissed, however, nothing stated in this order shall affect the merits of the case before the Ld. Trial Court. Order dated 23.02.2023 passed by Ld. Trial Court is upheld. Digitally signed VIKRAM by VIKRAM BALI BALI Date: 2023.11.06 16:36:04 +0530 (Vikram Bali) Addl. District Judge-02, North Announced in the open Court. Rohini Court Complex, Rohini (Order contains 10 pages) Delhi/06.11.2023 MCA DJ No. 28/23 SDM/RA (Alipur) Vs. Jitender Kumar Jain page 10 of 10