Delhi District Court
Smt. Dharmo vs Delhi Development Authority on 16 January, 2010
IN THE COURT OF Dr. KAMINI LAU: ADDL.
DISTRICT JUDGE13: CENTRAL DISTRICT: DELHI
Suit No.118/2009
Smt. Chhoti Devi (deceased) through her L.Rs
1. Smt. Dharmo
W/o Master Man Phool
R/o Village Chhara, Tehsil Bahadurgarh
District Rohtak.
2. Smt. Sarla
W/o Sh. Suraj Bhal Kadiyan
R/o 82/4, Mehrauli,
New Delhi30
3. Smt. Bimla
W/o Sh. Ram Kumar
R/o 91/9, Kishan Garh,
Mehrauli,
New Delhi30
4. Smt. Meena
W/o Sh. Om Prakash,
R/o 753/22, Krishan Nagar,
Sonepat, Haryana.
.........Plaintiffs
Versus
Delhi Development Authority
1
Through its ViceChairman,
I.N.A. Vikas Sadan,
New Delhi.
........Defendant
Date of Institution: 25.2.1992
Arguments heard on: 4.1.2010
Date of Decision: 16.1.2010
: J U D G M E N T :
This suit for permanent injunction has been filed
by the plaintiff (deceased) through her LRs against the
defendant Delhi Development Authority seeking a restrain
over the defendants its employees, servants, agents etc. from
dispossessing her and interfering in her possession and
enjoyment of the suit property in any manner. Briefly the
facts relevant to the disposal of the same as under:
BRIEF FACTS:
Plaintiff's Case:
2
The case of the plaintiffs is that she and her ancestors are in occupations of the property bearing No. RZ 11129, Village Kishan Garh, Tehsil Mehrauli, New Delhi forming part of Khasra No. 2947/2730/1674 (new Khasra No. 1212) in village Kishan Garh, Tehsil Mehrauli, New Delhi and peacefully living in the same for last about several years without any interruption or interference of any nature whatsoever. According to the plaintiff, she had settled much before the coming into force of the Delhi Land Reforms Act on the property in question. It is stated that the land falling within the territory of the erstwhile Kishan Garh Village comprised of 349 Bighas and 12 Biswas and out of this a very small part of the land measuring nearly 22 Bighas was under
proprietary rights and the remaining part of the land was under the occupation of the villagers who had built up their residence there. It is further stated that due to the improper 3 maintenance of the revenue record of the land occupied by the villagers continued to be shown in the revenue record as Shamlat Deh or "BANJAR" land whereas the area was Shamlat Abadi. It is pleaded that after coming into force of the Delhi Land Reforms Act, 1954 the area under the occupation of the villagers and the plaintiff, was declared to be the Gaon Sabha land in terms of the provisions of the Delhi Land Reforms Act. According to the plaintiff, as a result of the mismanagement of the revenue record the plaintiff along with the other similarly placed occupants, instead of being conferred Bhoomidari rights, were liable to be ejected from the Gaon Sabha Land but realizing the gross injustice the aforesaid action would entail, the then executive functionaries, instead of ejecting the occupants, including the plaintiff, in view of the long and continuous possession of the newly designated Gaon Sabha land by the residents of the village, 4 decided to confer permanent/ perpetual lease for 99 years renewable after the expiry of the term. It is stated that the then Lt. Governor Sh. Jagmohan approved the grant of lease hold rights and further ordered the preparation of the "up to date list indicating the built up area under occupation" so that the occupants could granted leasehold rights over the area under their occupation. A list of the occupants was prepared and even a map /layout plain showing the location of the area under occupation was prepared and in lieu of the aforesaid policy, the plaintiff was served with a notice dated 10.11.1972 directing her to have the lease of the area under her occupation duly executed. A reminder dated 23.03.1973 referring to the aforesaid letter was sent requiring the plaintiff to deposit the cost of the preparation of the Lease deed so that the lease could be executed but the same could not materialize due to the plaintiff's illiteracy and ignorance. Till May 27, 5 2003 DDA executed only 10 leases and lease papers issued to 20 persons were not returned and the Lease papers were not processed for 61 persons. It is pleaded that the Central Govt vide a notification no. 2190 published in the official gazette dated 20.08.1974 entrusted the remaining area of the aforesaid Gaon Sabha land under Section 22 (1) of the Delhi Development Act, 1957 to the defendant for the specific objective of conversion and development of the land into green belt obviously and environmental protection and to act as a bulwark against deforestation consequent upon relentless commercialization.
According to the plaintiff, the suit property is within the civic area of the Municipal Corporation of Delhi and the suit property with the construction thereon is assessed to House Tax at the hands of the Municipal Corporation and plaintiffs are in peaceful use and occupation of the property. 6 It is pleaded that the plaintiff that the area where the suit property is situated has nothing to do with the defendant and the defendant has no jurisdiction to interfere in the possession and enjoyment of the plaintiff qua the suit property. It is further stated that the land in question is free from all encumbrances and is not subjected to any acquisition proceedings under the Land Acquisition Act. It is alleged that the defendant with some of its officers had visited the site at 4.00 P.M. on 04.02.1992 to take possession of the suit property forcibly from the plaintiff under a mistaken apprehension that the property stands acquired and had been placed at their disposal but on account of the intervention of the local residents and neighbours defendant could not succeed in their illegal game. Again on 5.2.1992 the officers of the defendant visited the site on 5th February, 1992 to achieve in their actions since the Police Force was not 7 available on that day and the defendant had to return back. According to the plaintiff, the defendant, its servants, agents and employees has no right to interfere with the possession of the plaintiff as also they have no right to interfere with the enjoyment of the suit property by the plaintiff. It is further stated that the plaintiff has not received any notice from the defendant or from any authority in the matter. It is also stated that on 7th February, 1992 the plaintiff alongwith the other residents of the area had approached defendant authority in order to satisfy themselves with regard to his title qua the suit property. The officer of the defendant authority had again visited the suit properly on 10th February, 1992 but they could not succeed in dispossessing the plaintiff from the property in question because of the intervention of the local residents and neighbours and the officers went away with the threatening that they would come again and dispossess the plaintiff from 8 the property in suit. On 20.02.1992 in order to dispossess the plaintiff and her neighbours and their respective properties, the officers of the defendant authority went away when the various local residents showed the stay orders passed by the court, with a threat that they could come again. According to the plaintiff, the defendant, its servants, agents and employees has no right to interfere with the possession of the plaintiff.
It is stated that the cause of action for filing the present suit firstly arose in favour of the plaintiff and against the defendant on 04.02.1992 and 05.02.1992 when the staff of Delhi Development Authority came at site to dispossess the plaintiff and to damage the property. It further arose on 07th February, 1992 when the defendant authority refused to hear the plaintiff and the cause of action being of recurring nature is still continuing one. The cause of action also arose on 20.02.1992 when the officers of the defendant visited the site 9 in order to dispossess the plaintiff and interfere in her possession.
The record reveals that the main plaintiff Smt. Chhoti Devi had expired during the pendency of the suit pursuant to which her legal heirs have been brought on record.
Defendant's Case:
In their written statement the defendant DDA has raised a preliminary objections that the suit for permanent filed by the plaintiff's not maintainable by law and she is not entitled to any relief whatsoever. According to the defendant, the plaintiff's are not the owner's of the land measuring 2075 sq. yards forming part of Khasra No. 2947/2730/1674 (old) and Khasra No. 1212 (new) measuring 15 bigha and 4 biswas situated at Kishan Garg, Village Mehrauli, Delhi which is 10 under the management of DDA vide notification SO No. 2190 dated 20.8.1974 and was transferred to the DDA from Gaon Saba. It is further stated that there is no entry in the revenue record of ownership of the plaintiff and no construction or encroachment can be allowed on the government land which is presently a vacant land. According to the defendant, the plaintiff has concealed material facts from this court and therefore, the plaintiffs' are not entitled to any relief of injunction. It is pleaded that the land in dispute in respect of which the present suit has been filed belonged to Gaon Sabha It is stated that agreement to sell does not confer any right, title or interest in favour of the plaintiff's since Sh. Dalip Singh with whom the plaintiff had entered into agreement to sell did not have any right, title or interest in the land subject matter of the present suit. According to the defendant, Sh. Dalip Singh was neither the owner nor in possession of the 11 piece of land in respect of which the agreement to sell dated 20.10.1991 has been entered into and therefore, he could not create any right, title or interest in respect of the said land in favour of the plaintiff's and land in dispute was has never been in possession of the vendors of the plaintiff's because there is no vendor in as much as no sale deed has been executed.
It is further stated that the land in dispute comprise in Khasra No. 2947/2730/1674 situated in Kishan Garh, Village Mehrauli was in the ownership of Gaon Sabha and a notification dated 3.6.1966 was issued under Section 507 of the DMC Act, 1957 by way of which the land situated in Kishan Garh including the land in question was declared as an 'Urban Area' and vested in the Central Government under the provisions of the Delhi Land Reforms Act. The Central Government vide notification dated 20.8.1974 issued under Section 21 (1) of the Delhi Development Act placed the land 12 at the disposal of the defendant DDA for the purpose of Development and Maintenance of the said land as 'Green Area'. It is stated that the plaintiffs; have filed the present suit without serving the statutory notice as required under Section 53B of the Delhi Development Act and in the absence of the said notice, the suit is liable to be dismissed summarily.
According to the defendant DDA, the plaintiff or his predecessor in interest did not have any permission or sanction in respect of construction alleged to had been raised on the land under dispute and the said construction being illegal and without any authority of law. It is stated that the plaintiff was a rank trespasser and has no right, title or interest in the land in dispute.
On merits, the defendant has denied all the allegations made against them. It is stated that the DDA got 13 the land vacated on 29.2.1992 and took physical possession of the same by having barbed wire fencing to the same and after vacating of the stay by this court, DDA took possession of the suit land admittedly on 21.10.2003. According to the defendant, the land falls on JNU Road of the said village and comes in the 45 meter road widening and 60 meter green belt area as per composite plan besides in JNU Road unauthorized colony. It is further stated that after dismissing the stay application, the defendant/ DDA has taken demolition action on 21.10.2003 and removed unauthorized construction of one Dhaba, three shops and three rooms etc. from the suit land. ISSUES FRAMED:
On the basis of the pleadings of the parties, vide order dated 20.1.1995 the Ld. Predecessor of this court framed the following issues:
1. Whether plaintiff is owner and is in possession of 14 the suit land?
2. Whether land belongs to Gaon Sabha? (OPD)
3. Whether land comprised in Khasra no. 1674 of village Kishangarh on being notified vested with Central Government and by virtue of another notification issued under Section 22 of the DD Act, is under the control and management of DDA? (OPD)
4. Whether construction raised on the land in suit is lawful or is after seeking necessary permission?
5. Whether the plaintiff is entitled to the injunction as prayed for?
6. Relief.
EVIDENCE:
It is evident from the record that the affidavits of 15 evidence of Bimla Khatri, Risal Singh, Man Singh and Jai Singh have been placed on record but none of the said witnesses have appeared to depose.
The defendant DDA has examined one Vijay Kumar, Patwari in LM/SWZ/DDA as their sole witness as DW1 who in his examination in chief by way of affidavit corroborated what has been earlier stated in the written statement. He has placed on record the Khatauni of the suit property which is Ex.DW1/1; notification dated 3.6.1966 under Section 507 of the DMC Act which is Ex.DW1/2; notification bearing S.O. No. 2190 dated 20.8.1974 which is Ex.DW1/3 and the demolition reports are Ex.DW1/4 & Ex.DW1/5.
FINDINGS:
I have heard the arguments advanced before me by the counsels for the parties and have gone through the records 16 of the case. My findings on the various issues are as under: Issue no.1 Whether the plaintiff is owner and in possession of the suit land?
Onus of proving this issue was upon the plaintiff. The initial plaintiff Smt. Chhoti Devi has expired and her legal heirs have been impleaded. The case of the plaintiff is that they are the owners in possession of the suit land measuring 2075 sq. yards forming part of Khasra No. 2947/2730/1674 (old) and Khasra no. 1212 (new) situated at Kishan Garh, Village Mehrauli, Delhi. The case of the defendant DDA on the other hand is that the plaintiffs are rank trespassers and the land in question was a Gaon Sabha land previously and pursuant to the notification SO No. 2190 dated 20.8.1974 issued under Section 22 (1) of the DD Act, the land was transferred to the DDA from the Gaon Sabha. A large number of affidavits of evidence have been placed on record 17 but none has appeared to depose rather it is evident from the record that the plaintiff at the final stage, had stopped appearing and appeared to have abandoned the proceedings.
The plaintiff having failed to adduce any evidence, I hereby hold that she has not been able to discharge the onus upon her. Issue is hereby decided against the plaintiff and in favour of the defendants.
Issue no.2 Whether the land belongs to Gaon Sabha? Issue no.3 Whether land comprised in Khasra No. 1674 of Village Kishangarh on being notified vested with Central Government and by virtue of another notification issued under Section 22 of the DD Act, is under the control and management of DDA?
Both the issues are clubbed together for the sake of convenience involving common discussion. Onus of proving both the issues was upon the defendant. The case of the plaintiff is that they are the owners in possession of the 18 land measuring 2075 sq. yards forming a part of Khasra No. 2947/2730/1674 (old) and Khasra no. 1212 (new) situated at Kishan Garh, Village Mehrauli, Delhi. The case of the DDA is that the land in question belongs to the Gaon Sabha and has been transferred to the DDA for maintenance. In this regard the defendants have examined Vijay Kumar Patwari, LM/SWZ/DDA as their sole witness. The said witness has specifically deposed that the plaintiffs are not the owners of the land measuring 2075 sq. yards forming part of Khasra No. 2947/2730/1674 (old) and Khasra no. 1212 (new) measuring 15 bighas and 4 biswas situated at Kishan Garh, Village Mehrauli, Delhi. According to him, the land belong to the Gaon Sabha and had been transferred to the DDA vide notification S.O. No. 2190 dated 20.8.1974 and therefore, the plaintiffs have no right, title or interest nor any construction/ encroachment can be permitted upon the government land. 19 He has placed on record the Khatauni showing that the suit land comprised in the aforesaid Khasra situated in Kishan Garg, Village Mehrauli was in the ownership of Gaon Sabha which Khatauni is Ex.DW1/1. He has proved the notification dated 3.6.1966 which is Ex.DW1/2 issued under Section 507 of the DMC Act wherein the land in question situated in village Kishan Garh including the land subject matter of the present suit was declared as "Urban Area". It is testified that on issuance of the aforesaid notification the land vested in the Central Government under the provisions of Delhi Land Reforms Act and the Central Government became the owner of the said land. He has further deposed that the Central government by notification S.O. No. 2190 dated 20.8.1974 issued under Section 22(1) of the DD Act placed the said land at the disposal of the DDA for purposes of development and maintenance of the land as Green which notification is 20 Ex.DW1/3. According to the witness, the plaintiff was a rank trespasser and was carrying out unauthorized construction activities in the suit property. He has also deposed that the plaintiff was never in settled possession and after the vacation of the interim stay, the DDA has already taken over the possession of the suit land and is presently lying vacant at the site and well fenced by the DDA. It is further stated that the land falls on JNU Road of the village and comes in the 45 meter road widening and 60 meter green belt area as per composite plan besides in JNU Road unauthorized colony,. According to DW1, after the dismissal of the said application, the DDA has taken the demolition action on 21.10.2003 and removed the unauthorized encroachment of one Dhaba, three shops and three rooms etc. from the suit land and the DDA took possession on the same date. The said witness has not been crossexamined by the plaintiffs and his entire testimony 21 has gone unrebutted and uncontroverted.
I have duly considered the submissions made before me. Ld. Counsel for the defendant has placed his reliance on the following authorities which I have duly perused:
1. Dayabhai Chaganbhai Thakkar Vs. State of Gujarat reported in AIR 1964 SC 1563.
2. Mahadev Savlaran Sheikh Vs. The Pune Municipal corporation reported in (1995) 3 SCC 33.
3. Bakshi Ram Vs. DDA reported in 1995 (32) DRJ 597.
4. Premji Rattansey Shah & Ors. Vs. JT 1994 (6) SC
585.
5. Rajinder Kakkar Vs. DDA reported in 1994 (I) AD (Delhi) 432.
6. Tamil Nadu Housing Board Vs. A. Vishwan reported in AIR 1996 SC 3377.
7. Mohan Lal Vs. Mohan Singh reported in 1995 PLJ Page 48.
22
The Hon'ble Supreme Court in the case of Jangbir Vs. Mahavir Prashad Gupta reported in 1974 (4) SCC 682 had observed that the provisions of Section 507 (a) and (b) of the DMC Act refer only to "areas" and not to mere Khasra nos. which are convenient divisions for the purposes of indicating what lay within each area. It was further observed by the court that the term "urban area" or "rural area" is used for much larger units than khasra nos. and it is quite possible to think of one particular number, within an "abadi" area, left out or dropped deliberately.
It is, therefore, evident that in view of the notification dated 13.6.1966 which is Ex.DW1/2 the entire Kishangarh village including all immovable properties belonging to the Gaon Sabha became the property of the Central Government and the land under the occupation of the 23 plaintiff situated in village Kishangarh to which the notification under Section 507 of the DMC Act dated 3.6.1966 applied, thereafter became the property of the Central Government which was later on transferred to the DDA for maintenance as green. Therefore, the notification dated 3.6.1966 having been issued by the government under Section 507 of the DMC Act whereby the entire area of Kishangarh was urbanized, consequentially in terms of the provisions of Section 150 (3) of the DLR Act, the land came to vest under the Central Government vide notification under Section 22 (1) of the DD Act dated 20.8.1974 and on urbanization the entire area was placed at the disposal of the DDA for purposes of development and maintenance of the said land as green and for taking such steps as required to serve the said purpose, subject to the condition that the DDA shall not take or cause or permit to be made any construction on the said land. 24
Therefore in view of the aforesaid I hereby hold that the entire area of village Kishangarh Mehrauli stood vested in the Central Government under Section 507 of the DMC Act vide notification dated 3.6.1966 which is Ex.DW1/2 and by necessary implication the land over which the plaintiffs are staking their claim is also covered by the said notification being situated in village Kishangarh. Thereafter, vide notification dated 20.8.1974 which is Ex.DW1/3 the entire land of village Kishangarh which was earlier taken over by notification Ex.D2W1/1 stood transferred to DDA for maintenance as green with directions that under no circumstances, the DDA can permit or cause to permit any construction over the same. The Delhi High Court in the case of Rajender Kakkar Vs. DDA in Civil Writ petition no. 3355/ 1993 had held that whole of village Kishangarh was urbanized and as per Section 150 of DLR Act the land of 25 whole Gaon Sabha ceases to be rural and the land belonging to the Gaon Sabha in the village Kishangarh vested in the Central Government who vide notification dated 20.8.1974 placed the same at the disposal of the DDA.
The plaintiffs have failed to show their right, title or interest over the land over which the plaintiff is stated to have asserted her claim. The entire testimony of DW1 has gone uncontroverted. Vide a demolition dated 21.10.2003 the encroachment have already been removed and the land is presently under the fencing and possession of the DDA. Under these circumstances, I hereby hold that the land comprised in Khasra No. 2947/2730/1674 (old) and Khasra no. 1212 (new) situated at Kishan Garh, Village Mehrauli, Delhi which initially belonged to Gaon Sabha is vested with Central government and thereafter, by virtue of notification issued under Section 22 of the DD Act, it is under the control 26 and management of DDA. Issues are decided in favour of the defendant and against the plaintiffs.
Issue no.4 Whether construction raised on the land in suit is lawful or is after seeking necessary permission?
Issue no.5 Whether the plaintiff is entitled to the injunction as prayed for?
Both the issues are clubbed together for the sake of convenience involving common discussion. In view of my detailed findings with regard to issues no. 2 and 3 which are not being repeated for the sake of brevity and also in view of the specific deposition of DW1, I hereby hold that the construction raised on the land by the deceased plaintiff (through LRs) who was a rank trespasser/ encroacher was illegal which construction of one Dhaba, three shops and three rooms has already been removed and the land is presently 27 under the fencing and possession of the DDA, which aspect has gone unrebutted and uncontroverted. No evidence has been lead by the plaintiff to discharge the onus upon it rather the LRs of the deceased plaintiff had stopped appearing at the final stage and appears to have abandoned the proceedings. Therefore, under these circumstances, I decide the issues against the plaintiff (through LRs) and in favour of the defendant.
Relief:
In view of my discussion with regard to the various issues, I hereby hold that the deceased plaintiff (through her LRs) is not entitled to any relief of injunction as asked for in the plaint.
Suit of the plaintiff is hereby dismissed. Parties to bear their own costs. Decree sheet be prepared accordingly. File be consigned to Record Room.
28 Announced in the open court (Dr. KAMINI LAU) Dated: 16.1.2010 Addl. District Judge: Delhi Suit No. 118/09 Smt. Chhoti Devi (deceased) through LRs Vs. DDA 16.1.2010 Present: None for the plaintiff. Sh. K.D. Sharma, advocate for the DDA.
Vide my separate detailed order dictated and announced in the open court but not yet typed, the suit of the plaintiff is hereby dismissed. Parties to bear their own costs.
Decree sheet be prepared accordingly. File be consigned to Record Room.
(Dr. Kamini Lau) ADJ: DELHI/ 16.1.2010 29