Delhi District Court
Cs No. 24/17/93 Harbans Lal Narula vs Union Of India & Ors 1/74 on 1 August, 2017
IN THE COURT OF SH. SANJAY KUMAR: ADDL.
DISTRICT JUDGE, (WEST)-02, TIS HAZARI COURTS:DELHI.
Civil Suit No. 24/17/93
Civil DJ- 11918/16
1. Shri Harbans Lal Narula ( Since deceased)
Through His LRs
1A. Shri Surinder Kumar Narule (Since deceased)
through His LRs
1A(a) Shri Vikram Narula
S/o Late Sh. Surinder Kumar Narula
R/o BA/23A, Ashok Vihar,
Phase-1,
New Delhi-110 052
1A(b) Mrs Ruma Midha
W/o Shri Roy Nandan Midha,
R/o 326, Adarsh Nagar,
Jullundhar ( Punjab)
1A(a) Mrs Ratna Kalra,
W/o Shri Atul Kalra,
R/o A-5, Jungpura Extension,
New Delhi-110014
2. Shri Davinder Kumar Narula
S/o Late Shri H.L. Narula
53/63, Ramjas Road,
Karol Bagh,
New Delhi-110005
3. Mrs Rajni Narula
W/o late Shri Nripinder Kumar Narula,
(Deceased son of late Shri H.L. Narula)
53/63, Ramjas Road,
Karol Bagh,
New Delhi-110005
4. Ms Jyotsna ( Minor)
D/o Late Shri Nripinder Kumar Narula,
CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 1/74
Through Natural Guardian/Mother
Mrs Rajni Narula,
53/63, Ramjas Road,
Karol Bagh,
New Delhi-110 005
5. Master Knishk ( Minor)
S/o late Shri Nripinder Kumar Narula,
Through Natural Guardian/Mother
Mrs. Rajni Narula,
53/63, Ramjas Road,
Karol Bagh,
New Delhi- 110005
..........Plaintiffs
Versus
1 Union of India
through Secretary
Ministry of Works & Housing,
Land & Development Office,
Nirman Bhawan,
New Delhi
2 Estate Officer,
Land & Development Office,
Nirman Bhawan,
New Delhi
3 Delhi Development Authority,
Through its Chairman
Vikas Sadan, INA
New Delhi
......Respondents
Date of institution of the case : 24.09.1993
Date reserved for judgment on : 24.07.2017
Date of pronouncement of judgment: 01.08.2017
JUDGMENT:
1 A suit for declaration and permanent injunction has been filed.
CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 2/74 2 In brief the facts are that the plaintiff was a refugee who was initially an inhabitant of Sialkot District, now in Pakistan, and came to India during partition in the year 1947 as a refugee. The plaintiff was registered as such registration no. 4434, with the Ministry of Relief & Rehabilitation, Government of India on the 8th November, 1947.
3 It is stated that plaintiff in order to establish himself set up a business of Coal Depot and has been running the same for the last more than 40 years. During the visit of Queen Elizebeth the local Superintendent of Police asked the plaintiff to shift his site of Kachha Khokha and was asked to settle at the site, which he started occupying since then with the knowledge , permission and consent of the defendants and the business of a fuel depot in South Moti Bagh. The plaintiff has since then running a fuel depot and has been maintaining his livelihood from the same without any hindrance from any body.
4 It is stated that defendant no. 1 is the appropriate authority which deals with the matters of rehabilitation of displaced person and in the matter of allotment/compensation to the citizens of this country who came during the partition as refuges. Defendant no. 3 is a statutory body created under the Delhi Development Authority Act. Defendant no. 2 is an officer of the defendant no. 1 who is delegated with the powers to look after the matters relating to the properties owned by defendant no. 1. Defendant no. 4 is the C.P.W.D who are also staking claim to the premises in question, which has been and is in occupation of the plaintiff for the last more than about 40 years and is also known as shop NO. 45.
CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 3/74 5 It is stated that in order to rehabilitate the displaced persons the then Hon'ble Minister for Works & Housing and Civil Supplies had in the year 1951 made a public announcement on 29th September, 1951, to the following effect:
"Where any displaced person, without being authorised to do so, has occupied any public land or constructed a building or part of a building on such land before the 16 th August, 1950, such persons shall be removed unless the following conditions are fulfilled.
a) ........... b) where eviction is necessary, the alternative
accommodation should be provided on developed land, as far as practicable, near the displaced person.
c) .......... d) ......... e) Where the displaced person is unable to purchase the site
occupied by him by reason of his inability to pay the purchase money or otherwise, the provisions of Clauses (b) and (c) above, shall apply and shall not be evicted unless alternative accommodation is provided and rehabilitation grant is made.
Above is the extract of the Statement/assurance given by the Hon'ble Minister in Parliament in the year 1951.
6 It is stated that plaintiff had been applying to defendant no. 2 for regularization of his fuel shop and in that context the defendant no. 1 vide their letter No. L-III/8/2(12/67) had called upon the plaintiff to furnish an affidavit regarding his eligibility within one month from the date of the letter. In compliance of the request of defendant no. 1, the plaintiff furnished the requisite affidavit and complied with the formalities as were required by the office of the defendant no. 1.
CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 4/74 7 It is stated that defendant no. 1 initially through the estate officer, defendant no. 2 herein, was imposing demurage and in this context various notices were also issued to plaintiff under the Public Premises Act, ( hereinafter referred to as "P.P. Act) regarding imposition of demurage for use and occupation. The plaintiff has paid the entire amount as were being claimed by the defendants from time to time and obtained a regular licence as prescribed under the Delhi Cement Licensing & Control Order and the established of the plaintiff is registered under the shops and establishment Act, as a shop.
8 It is stated that plaintiff has besides the coal Depot started the business of building material for which the plaintiff has been using and storing the material and has also constructed partly a boundary wall so as to protect his stocks of coal, building material at the site in question. The said shop if the plaintiff is registered under the Shop & Establishment Act.
9 It is stated that defendant no. 3 has also issued a 'No Objection Certificate' wherein the plaintiff was allowed to install electric/water/sewer connections at the premises in question. In one of the proceedings as were initiated under the Public Premises Act an order had been passed whereby the officer of the defendant no. 1 had withdrawn the proceedings as were filed by them.
10 It is stated that Estate Officer, defendant no. 2, had also vide his letter dated 27.2.1989 requested the Collector Recoveries not to take action in view of the Plaintiff having paid the entire demurages. The plaintiff has been for the last more CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 5/74 than about 40 years approaching the defendants, more particularly defendant no. 1, for allotment of a regular site and or a regular shop in terms of the Policy of defendant no. 1 to rehabilitate the displaced person. Even though the shops and Kiosks were available, the plaintiff was not allotted the alternative site/accommodation and the plaintiff has since then been continuing to run his business at the premises in question, deeming it to be as confirmation of his allotment. It may also be relevant to mention that in the year 1959/60 the premises in question/occupation of the plaintiff were also imposed House Tax and the House Tax as was imposed was also paid by the plaintiff.
11 It is stated that plaintiff has been following up his case regarding confirmation of allotment or in the alternative allotment of a regular site. In this regard, various meetings were held and recommendations and letters were exchanged between the Counselor and the then Hon'ble Minister. It is stated that many categories of person in or around Connaught Place and other such like refugees have been provided with alternative sites/shops to displaced person and similarly in other places to coal depot holders in confirming their allotment in rehabilitating them.
12 It is stated that two officers of the defendant No. 3 came to the site of the plaintiff and threatened the plaintiff by removal of his various coal and building material lying at the site and also threatened to get him arrested and tried to dispossess him on 22.09.1993. The plaintiff immediately showed them various recommendation letters and payment of demurage receipts etc. but the officials did not listen to the plaintiff's CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 6/74 request and threatened that they would bring the regular force and get the possession of the site in question.
13 It is stated that the threatened action of the officials of the defendants is not only illegal, void discriminatory and against the principles of natural justice and insomuch so the plaintiff has not been given any opportunity of being heard nor has given any show cause notice of the proposed action in proceedings as envisaged under the Public Premises Act, if applicable to the defendants. The defendants have also neither offered any alternative site/shop to the plaintiff as was agreed between the plaintiff and the defendant no. 1 and 2 and if the officials of the defendant no. 3 are not estopped to execute the threatened action the plaintiff will be ruined and will not be able to earn his livelihood which he has been earning for the last than 40 years.
14 It is stated that in view of the fact that initially the defendant no. 1 through defendant no. 2 had been claiming damages from the plaintiff wherein they were claiming themselves to be owner of the land in question and plaintiff has been paying demurage as was being levied from time-to -time for the last more than about 35 years. However, strangely now it is the defendant no. 3 & 4 who are claiming ownership of the site in question. In this context the officials of defendant no. 3 & 4 also came at the spot and forcibly tried to remove/dispossess the plaintiff and a dispute arose as a result of which the officials of the defendant no. 4 lodged a complaint with the Local Police.
CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 7/74 15 It is stated that defendant no. 3 & 4 had been issuing notices under the Public Premises Act and had initiated proceedings under the P.P. Act for imposition of damages for use and occupation. In view of this fact, it is clear as to who is the owner of the site in question.
16 It is stated that proceedings under Public Premises Act have been initiated by the Learned Estate Officer, of the defendant no. 3 vide file No. E-1/Nanakpura/514/93 and the plaintiff has entered appearance and is participating in the proceedings. The said case is listed for 28 th September, 1993. The matter being sub-judice and no eviction orders having been passed against the plaintiff the act of defendants to forceably dispossess the plaintiff by the officials of the defendants no. 3 and 4 is illegal and violative or natural justice.
17 It is stated that cause of action for filing the present suit arose on 22ned day of September, 1993 when the officials of the defendants came to the site of the plaintiff and again on 23 rd September, 1993 morning and threatened the plaintiff to dispossess. Plaintiff seeks decree for declaration, declaring that plaintiff is the allottee and owner of the site in question and entitled to an alternative site/shop/accommodation or is entitled to proper rehabilitation in a regular alternative site/shop/accommodation. And defendants be restrained by a decree for permanent injunction restraining the defendants, their servants and agents from dispossessing the plaintiff from coal/depot/building material shop/space in occupation of the plaintiff.
CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 8/74 18 Written statement filed on behalf of defendant no.1, Union of India, and stated that Shri Harbans Lal Narula, petitioner has occupied government land unauthorisely at Nanakpura measure 467 square yards initially. The land in question was acquired by the government vide Notification No. 775 dated 21.12.1911 for formation of New Delhi of India and is under the Administrative Control of the Land & Development office. The petitioner did not obtain any permission from this office to occupy the said land hence his occupation is unauthorised.
19 It is stated that plaint for recovery of damages for unauthorised use and occupation of the Government land was filed in the court of Estate Officer who passed an order dated 03.06.1972 for recovery of damages for the period from 01.01.1959 to 31.10.1965 for Rs. 8616.60P payable in 60 equal monthly installments. Plaint for recovery of damages for further period for 01.11.1965 to 25.11.1965 for an 467 Sq. yards from 26.11.1965 to 18.08.1966 for an area of 200 Sq. Yards from 19.08.1966 to 26.01.1968 for an area of 59 Sq. Yards was filed in the court of Estate Officer.
20 It is stated that being aggrieved of the order of Estate Officer dated 03.06.1972, party went in appeal before the Hon'ble court of Additional District, Judge, who passed an order dated 02.11.1972 remanding the case for re-decision. Accordingly Estate Officer passed an order dated 18.09.1976 for recovery of damages amounting to Rs. 10,460.90 for unauthorised use and occupation of Government land measuring 467 Sq. Yards 200 Sq. Yards & 59 Sq. Yards from 01.01.1959 to 26.01.1968 in 40 equal monthly installments and in case of CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 9/74 default in payment of any one installment on the due date, the whole amount will become due and payable all at once and will be recovered as arrears of land revenue.
21 It is stated that plaintiff again went in appeal before Addl. District Judge against the order of Estate Officer dated 18.09.1976. The Hon'ble Additional District Judge, vide has orders dated 15.01.1977 directed Estate Officer to recalculate and re-assess the damages. Accordingly Estate officer passed another order dated 23.04.1977 for recovery of damages from 01.01.1959 to 26.01.1968 amounting to Rs. 4611.80 to be paid in 20 equal monthly installments.
22 It is stated that site was got inspected on 21.12.1976 and found that squatter has increased the area 59 Sq. Yards to 187 Sq. yards plaint for eviction and recovery of damages for further period from 27.01.1968 to 20.01.1977 amounting to Rs.13,181.71 for an area of 59 Sq. Yards upto 20.12.1976 and for an area of 187 Sq. yds from 21.12.1976 ( date of inspection when area was found in excess) to 20.11.1977 was filed in court of Estate Officer who passed an order dated 27.05.1977 for recovery of damages amounting to Rs.4,455/- payable in 30 equal monthly installments for the said period from 27.01.1968 to 20.01.1977. Since the land was transferred to Delhi Development Authority vide Notification dated 21.08.1975 for care and maintenance as Green, so the proceedings for eviction of the squatter were withdrawn from the Court of Estate Officer and Estate Officer has allowed to withdraw the same.
CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 10/74 23 Since the squatter failed to make full payment of damages the case was referred to Collector for recovery of balance damages. The Squatter paid full amount in 1989 of damages upto 20.01.1977. Letter was written to Delhi Development Authority for recovery of damages for further period as the land was transferred to them. The DDA has also acknowledge and informed this office vide their letter dated 10.03.1988 that action under P. P. Act is being initiated against the un-authorised squatter by them.
24 It is stated that area under un-authorised occupation of squatters has changed from time to time as under:-
1. From 1.11.1959 to 25.11.1965 = 467 Sq.Yds
2. From 26.11.1965 to 18.08.1966 = 200 Sq.Yds
3. From 19.08.1966 to 20.12.1976 = 59 Sq.Yds
4. From 21.12.1976 to 14.06.1988 = 187 Sq.Yds
5. From 14.06.1988 to 11.09.1994 = 271 Sq.Yds
6. From 12.09.1994 to onwards = 1305 Sq.Yds
25 The site was inspected by the field staff of this office on 08.02.1994 and 12.09.1994 and it is found that squatter has constructed a pucca room as Godown-cum-office and building material work was being done there instead of Coal Depot, area now in unauthorised occupation is 1305 Sq. Yards as per survey dated 12.09.1994.
26 It is stated that Squatter filed a Civil Writ Petition No. 362/77 in the High Court of Delhi. In this Writ Petition a Civil Misc. No. 695-W/77 was also decided vide orders dated CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 11/74 27.09.1977 of Hon'ble Sh. S.S. Chadha, Judge ordering the petitioner to pay the damages for the use and occupation of government land.
27 Union of India, defendant no.1 thereafter taken preliminary objections stated that the present suit is barred by Principle of resjudicate. The matter has already been finally decided in C.W. No. 695-W/77. It is stated that plaint does not disclose any cause of action.
28 On merit all the contents of the plaint are denied. The plaint is admitted to the extent that the plaintiff had applied for regularisation of his fuel shop and the defendants have asked him for furnishing of an affidavit regarding his eligibility but it is further submitted that the plaintiff is in unauthorised occupation of Govt. land and is using the same for sale of Building material cement, etc. as such the plaintiff is not entitled for allotment of land. Thereafter some of the averments of the plaint were admitted and some of the facts were denied and reiterated the averments mentioned hereinabove.
29 Defendant no. 3, Delhi Development Authority also filed written statement and taken preliminary objections that plaintiff is merely an unauthorised occupant on the suit property having no right, title and/or interest therein. The disputed land admittedly belongs to defendant no. 1 and as such the plaintiff has no right to maintain the instant suit against the defendants and the suit is liable to liable to be dismissed on this ground.
CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 12/74 30 It is stated that plaintiff;s own admission, proceedings under the Public Premises ( Eviction of Unauthorised Occupants) Act, 1971 were initiated against the plaintiff and damages for his unauthorised occupation were claimed from him. Section 15 of this Act puts a bar on the courts to entertain any suit or proceedings in respect of proceedings under the said Act. The present suit is therefore liable to be dismissed on this ground as well.
31 It is stated that plaint does not disclose as to when and by which mode any legal notice as required under Section 53-B of the Delhi Development Act, 1957, was, if at all, issued and further as to when the service thereof was effected on the answering defendant. The suit has neither been properly valued for the purpose of court fee and its jurisdiction. On merit all the contents of the plaint are denied and reiterated the averments mentioned in the written statement of defendant no. 1.
32 It is pertinent to mention here that in this case defendant no. 4 has already been deleted vide order dated 11.01.1999 and right to file written statement of defendant no. 2 was closed on 22.01.1998 and only defendant no. 1 & 3 are the contesting the matter who had filed their written statements, mentioned above.
33 On the pleading of the parties following issues were framed by my Ld. Predecessor vide order dated 04.05.2006:-
1. Whether the plaintiff is in unauthorised occupation of suit land which belongs to defendant no. 1? OPD 1 and 3.
CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 13/74
2. Whether civil suit is barred and this court has no jurisdiction to decide this matter as per Section 15 of Public Premises ( Eviction of unauthorised occupants) Act? OPD 3
3. Whether the suit is not maintainable due to absence of any legal and valid notice as required Under Section 53-B of DDA Act? OPD 3
4. Whether the valuation of suit for purposes of court fee and jurisdiction is correct? OPP
5. Whether suit is barred by principles of resjudicata due to decision of CW No.695-W/77 by Hon'ble High Court? OPD1
6. Whether the plaintiff is entitled for decree of two reliefs of declarations as prayed for ? OPP
7. Whether the plaintiff is entitled for decree of injunction as prayed for? OPP
8. Relief
34 In order to prove the case of the plaintiff, son of plaintiff Sh. Davinder Kumar Narula appeared as PW-1 and tendered his evidence by way of affidavit and relied upon the original letter dated 23.11.1961 issued by the Directorate of Food and Civil Supplied, New Delhi as Ex. PW-1/1, original notices of assessment dated 20.04.1963 and 26.09.1963 issued under the Sales Tax Act, 1941 in favour of the plaintiff and same is Ex. PW- 1/2 & 3. He also rely upon the application filed by his father for telephone connection on 11.02.1965 as Ex. PW-1/4, the allotment letter by Food and Supply Department dated 16.10.1972 and 30.11.1972 as Ex. PW-1/5 & Ex. PW-1/6, the No Objection dated CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 14/74 14.09.1987 issued by DDA as Ex. PW-1/7, original receipt dated 31.03.1997 of Rs. 10,000/- for recovery of damages as Ex. PW- 1/8, Certified copy of order passed by ld. Estate Officer, L & DO as Ex. PW-1/9, letter dated 27.11.1955 as Ex. PW-1/10 and Site Plan as Ex. PW-1/11 and Mark A & B. 35 In the cross-examination he deposed that Before residing at Rohini he was residing at Ramjas Karol Bagh. He shifted to Rohini about six years ago. His father was residing at Ramjas Road till his death. The business of coal depot was being run from shop no. 46 situated at South Moti Bagh. At present he is in occupation of the land measuring 726 sq. yards. He admitted that the Commissioner of Food and Civil Supply had sent a letter, which is Mark G was addressed to him at E-61, Nanak Pura, Moti Bagh. He denied the suggestion that his father had started the business of coal depot from Nizamuddin.
36 He further deposed that Initially his father had stated coal depot after putting a 'kacchha Khokha' at Moti Bagh, opposite Shanti Niketan. The length and width of khokha was 10x10 feet. He does not know when the same was removed. Presently he is running the business of building material. When the Khokha removed his father had encroached upon the government land measuring 726 sq yards.
37 In further cross-examination he deposed that he is not aware whether any directions was given in writing to remove the khokha at the time of visit of queen Elizabeth. He cannot tell the exact location of the said Khokha. His father told him that the area of that Khokha was 10 feet by 10 feet. When their CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 15/74 Khokha was removed, his father had started encroachment on the another site, which was situated at Arkpur Bagh Mochi in Nanak Pura. He again said his father had shifted to the new site and not encroached upon. The new site was not allotted by any government agency. He has no order in writing that the said new site was allotted either to his father or to him from any government agency. He admitted the suggestion that his father had started business of building material from the said site besides the coal depot, for which his father had a valid licence. The building material business was started in 1985-86 and licence was obtained after one or two years. His father had shifted to the new site having area about 726 sq. yards in the year 1950.
38 He further deposed that he has no document to show that his father had paid any damages/fees to any government agency against the said site in 1950 and onward. He has the receipt pertaining to the year 1997 of Rs. 10,000/- Ex. PW-1/8. He admitted the suggestion that area of site is not mentioned in the said receipt and the period of occupation is also not mentioned therein. He has no letter in possession wherein DDA had demanded the said amount from them. During the period 1977 to 1997 his father had received demand letters from DDA for payment of damages but he has not filed said demand letter in the court but the same is in his possession.
39 He further deposed that he know Shobha Sachdev, she is his real sister. He admitted the suggestion that he has not impleaded Shobha Sachdev as L.R of deceased Hans Lal Narula. He does not know whether his father had transferred 400 sq. CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 16/74 yards from the site in question. As on today he is in possession of 726 sq. yards of land. He admitted the suggestion that in 1981 DDA had sent a demand letter stating that his father had occupied 286.25 sq. yards unauthorisedly and asked him why the damages may not be assessed on the said land. He does not remember whether his father had filed objection against the said notice and pleaded that he had only 180 sq. yards of land in his possession. He has no allotment letter of the land in dispute in his possession. He has no allotment letter from any government agency authorising him to occupy the suit land. He has no document about the ownership of property in question. He admitted the suggestion that his father had written a letter to government for the regularization of fuel shop. It was a constructed shop of 150 sq yards. The site mentioned in para 24 of his affidavit is of 726 sq. yards. The said fuel shop is till situated at the same site. Only 150 sq. yards is constructed area and remaining portion is an open land. There are total three rooms in 150 sq. yards. Said three rooms were constructed in 1982-83. The fuel shop was constructed in the year 1975-76. Three rooms were constructed after demolition of fuel shop. He is running business from the said property. He earn Rs. 10,000/- per month from the said site. He is not aware whether the mandatory notice was given to DDA under Section 53B DDA Act prior to filing of the present suit.
40 In further cross-examination he deposed that no written permission was given to his father to shift from old site to new site. No written permission was given to his father by defendant no. 1 and 2 permitting him to occupy the new site. No agreement was executed between his father and defendant no. 1 CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 17/74 and 2 at any point of time. He admitted that defendant no. 1 and 2 had initiated proceedings against his father under Public Premises Act. He deposed that he father had paid damages in that proceedings. He admit the document Ex. PW-1/P1. He admitted that he has constructed a godown at the site to store the building material. He has not taken any permission from any government agency for raising the construction. He does not know whether in the year 1977 the Hon'ble High Court had directed to pay damages to L & DO for unauthoised occupation of the suit premises.
41 In further cross-examination he deposed that No municipal number has been allotted to the site. He admitted that site is situated in a residential colony. He admitted that none of the documents filed by him is addressed to him but the same are addressed to his father. None of the said documents were executed in his presence except licence of coal depot and building material depot and application for allotment of telephone connection. He is looking after the business of his father since 1980. He had not paid any damages to any government agency after 1997. He denied the suggestion that he is an unauthorised occupation of the suit land or that encroached the suit land illegally.
42 PW-2 Ms Rajni, UDC from L & DO office, brought the record pertaining to Shri Harbans Lal Narula in respect of allotment of alternative fuel depot in Moti Bagh-II, New Delhi.
43 In the cross-examination she deposed that as per record, it appears that the property was in unauthorized use of CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 18/74 Shri Harbans Lal Narula from the year 1958, the area of the property is 200 sq. yards, as per letter dated 18.06.1973, copy of letter Mark E. As per record, which she has brought, no assessment was made in respect of damages for use and occupation of government land nor any payment has been made by unauthorized occupant. There is no mention of the property number in the record which she brought. No recovery of damages has been affected after letter Mark E, as per record brought by him.
44 PW-3 Sh. Hukam Chand, UDC from MCD appeared and proved the original file of Sh. Harbans Lal Narula and stated that as per record on 3.8.1960 the license of Sh. Harbans Lal Narula was renewed by the Licensing Department of MCD to keep Charcoal, coal or coke in premises no. South Moti Bagh and copy of the same is Ex. PW-3/1. The record also contains the original identity slip dated 9.12.1961 which is Ex. PW-3/2 ( Already marked as Mark C). He further deposed that as per register maintained by MCD, the license of Harbans Lal Narula was lastly renewed on 25.4.2000 and the copy of relevant register is Ex. PW-3/3 ( OSR).
45 PW-4 Sh. Vijay Kumar, Steno from Labour department, he proved the registration certificate dated 21.11.1988 issued under the Delhi Shops and Establishments Act, 1954 was issued in the name of Davinder Kumar son of Shri Harbans Lal Narula. The address of the establishment has been shown in their record as " Opposite E-60, Near Post Office Nanakpura, Moti Bagh-II, New Delhi and the name of establishment has been shown as " Harbans Lal Davinder Kumar CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 19/74 Coal Depot" and the nature of business has been shown as " Coal Depot". The registration certificate number is 9/12137/1 and date of registration is 21.11.1988.
46 In the cross-examination PW-4 Sh. Vijay Kumar, Head Clerk deposed that since he is not the dealing assistant, he cannot say whether the certificate issued is for one year or is a permanent one. The area of land is not mentioned in the register on which the coal depot is being run. He has not brought the entire record pertaining to the issue of registration certificate to the applicant Shri Davinder Kumar.
47 Plaintiff further examined Sh. Balbir Singh, Head Clerk, from the office of Deputy Labour Commissioner, District North-West, as PW-5 who brought the record of registration certificate bearing no. 9/12137/1 dated 21.11.1988 issued under the Delhi Shops and Establishment Act, 1954 in favour of Sh. Harbans Lal Devender Kumar, Coal Depot at the address "opposite E-60, near post office, Nanakpura, Moti Bagh-II, New Delhi-21". As per the summoned record the inspection was carried out by the Chief Inspector, Labour department on 28.04.1988. The summoned record does not contain the carbon copies or the attested copy of the above stated certificate of registration. He had seen photocopy Mark N and say that the original thereof had been issued by their department. The photocopy is Ex. PW-5/1.
48 In the cross-examination he deposed that he has been transferred to the office of the Deputy Labour Commissioner, District North-West, Nimri Colony, Ashok Vihar, CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 20/74 Phase- IV , Delhi recently. As per the summoned record brought by him there is no date of receipt of the application for issuing certificate of registration. He cannot identify the signatures of the Chief Inspector under whose signature the certificate of registration copy where of is Ex. PW-3/1 was issued. The area/space in respect of which the certificate of registration has not been mentioned in the certificate nor in the summoned register. The name of owner of the land/space has also not been mentioned.
49 In further cross-examination he deposed that he does not know what record had been checked before issuing certificate Ex.PW-5/1. As per record brought by him today he cannot say who is the owner of the land in question. He does not know how many times the land in question was inspected and by whom. He admitted that he has not brought the record of inspections/s. He has not personally made any visit to the land in question. He cannot admit or deny whether the land in question in fact belongs to the Government. There is no record available with them which may show that Sh. Devender Kumar Narula or his father Sh. Harbans Lal Narula has any record to claim that they are the occupiers of the land in question.
50 Defendant no. 1, Land & Development Office, in support of its case examined Sh. RVS Mani as D1W1 who tendered his evidence by way of affidavit Ex. D1W1/A. He relied upon the documents Ex. DW-1/1 to Ex DW-1/6. However at objection of ld. Counsel for the plaintiff to examining of the said witness also on behalf of defendant no. 2 on the ground that the defence of defendant no. 2 has already been struck off vide order CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 21/74 dated 28.04.1998 and secondly on the ground that the documents cannot be allowed to be filed at this highly belated stage. As the defence of the defendant no. 2 has already been struck off, the statement of the witness so far as it relates to defendant no. 2 shall not be read in evidence. However, documents was allowed to be taken on record subject to payment of cost of Rs. 1000/-.
51 In the cross-examination he deposed that he is familiar with the contents of his affidavit Ex. D1W1/A and written statement. As per their record petitioner occupied different parcels of land at different times. The details have been described in para 9 of his affidavit Ex. D1W1/A. He denied the suggestion that petitioner had never been occupied any government land and the detail given in para 2 of his affidavit is wrong. He deposed that he resided in Nanakpura, New Delhi area from 1986 to 2001 and, therefore, he deposed from his personal knowledge that there was a coal depot in existence. But he cannot cay whether any such coal depot was also in existence in Nanakpura area prior to 1986.
52 In further cross-examination he deposed that their record does not show that petitioner had been asked to shift his coal depot from katcha kohkha to the suit property in 1950s. As per earlier inspection report available on record petitioner had started his coal depot in the suit property in 1964. In respect to contents of para 9 of his affidavit he deposed that as per the inspection report of 1964 and the information report received from the petitioner he used the said portion for coal depot. On the basis of the information received from petitioner, their Estate CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 22/74 Officer had also passed order under Section 7 ( 2) of the P.P. Act w.e.f 1.1.1959.
53 In further cross-examination at the request of counsel for defendant no. 1 & 2 and not opposed by the counsel for plaintiff the copy of inspection report of 1964 alongwith copy of the information report exhibited as Ex. D1W1/D-X and Ex. D1W1/DY. As per their record petitioner, had remained in possession of this portion till 2001. He deposed that various notices had been sent to the petitioner for asking him to stop the coal business from the suit property since the same belonged to the Union of India. Even the eviction order had been passed against him under the Public Premises Act. Even orders for paying damages had been passed against him under the said Act.
54 In further cross-examination he admitted that as per record brought by him it does not contain copy of any such order. He again said that petitioner had filed an appeal against such an order passed under Section 7 (2) of the PP Act and the certified copy of the order passed in the appeal is Ex. DW-1/2. He denied the suggestion that no eviction order under the PP Act had been passed against petitioner. He denied the suggestion that no notice had ever been served upon petitioner by Union of India for stopping using the suit property for coal depot.
55 He further admitted that as per their record Vigilance Officer of the L & DO had made a request vide his letter no. Enf. 15-7 ( 1041)/65/575 dated 30.09.80 to the Estate Officer to withdraw eviction case no. ESO-11-4 (22)/77 against Sh. Harbans CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 23/74 Lal Narula and the copy of the letter is Ex. PW-1/9. He admitted that on the basis of the request made by the vigilance officer the above stated eviction case had been withdrawn.
56 He had seen the letter Mark P and admit its correctness and the letter exhibited as Ex. D1W1/P1. He further deposed that he has not brought any record to show that the suit land belongs to the Government of India but he volunteered that he can bring the copy of Award passed in 1911.
57 In further cross-examination he deposed that in September 2012, his charge was changed in the office of L & DO and subsequently he was transferred from L & DO in June, 2014 and since July, 2014 he has been posted in Ministry of Textiles and now he has no control or jurisdiction over the documents pertaining to this case maintained by the office of L & DO, therefore he cannot produce the notification No. 775 dated 21.12.1911 as mentioned in para 2 of his affidavit. He denied the suggestion that land does not belong to the government of India. He had filed his affidavit as per the policy of the L & DO where Deputy L & DO is authorised to file the affidavit after approval ad vetting by the department of legal affairs. He has not brought any such policy or authorization to show that he was authorized to depose on behalf of Union of India. He cannot say if the suit premises is situated opposite F-345, Nanakpura, South Moti Bagh, New Delhi and its municipal number because it is being maintained by the technical wing of the L & DO.
58 In further cross-examination he deposed that he does not know if petitioner was running the business of fuel/coal or it CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 24/74 was within the knowledge of the department i.e UOI. He denied having knowledge whether late Shri Harbans Lal Narula besides the coal department had also started business of building material in the suit premises or that after the death of Sh. Harbans LalNarula, Shri Devender Kumar Narula has been carrying on with the aforesaid business in the suit premises. He does not know whether there was a policy of defendant no. 1 i.e Ministry of Works and Housing regarding regularization of unauthorised colonies. He does not know whether there was a Gadgil Assurance dated 16.10.1970 under which there was a policy of government with regard to the rehabilitation of displaced persons in Delhi. He does not know whether defendant no. 1 had written a letter to late Shri Harbans Lal Narula to furnish an affidavit regarding his eligibility for regularization of his fuel shop or Sh.Harbans Lal Narula submitted documents in respect of his eligibility for regularization of his fuel shop. He deposed that he does not know whether late Shri Harbans Lal Narula approached the government/defendant no. 1 for confirmation of allotment or in the alternative allotment of a regular side ad or a regular shop in terms of the policy of the defendant no. 1.
59 In further cross-examination he deposed that he does not know whether there were certain other persons also who were favoured on political basis or who had been allotted sites, shops, kiosks in various markets by defendant no. 1 or if the shops and kiosks were available. He deposed that late Shri Harbans Lal Narula was not allotted the alternative site/accommodation. He denied the suggestion that late Shri Harbans Lal Narula, continued to run his business under the CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 25/74 impression that his allotment had been confirmed. He does not know whether late Sh. Harbans lal Narula remained in possession of the suit premises for about more 54 years till his death in the year 2001. He does not know whether any eviction proceedings are presently pending against late Shri Harbans Lal Narula or his L.Rs. He admitted that they have not filed the copy of order 3.6.1972. He voluntarily copy of the order dated 2.11.1972 passed by the Additional District Judge is already Ex. DW1/1 on record. He admitted that they have not filed the copy of order dated 18.09.1976. He voluntarily deposed that copy of order dated 15.01.1977 passed by the Additional District Judge, is already Ex. DW-1/2 on record. He denied the suggestion that a plaint of recovery of damages was not filed for unauthorized use and occupation of the government land or plaint for recovery of damages for the period 1.11.1965 to 25.11.1965 for 467 square yards filed in the court of Estate officer, as mentioned in para 4 of his affidavit.
60 In further cross-examination he deposed that the land he had mentioned in para -7 of his affidavit is about the land in question, however, he cannot identify from the notification which part of the land pertains to the suit property as the same can be identified from the Engineer Department. He denied the suggestion that the land in question in the present suit was not transferred to DDA vide the said notification. He denied the suggestion that no letter was written to DDA as mentioned in para 8 of his affidavit. He denied the suggestion that the contents of Para-7-8 of his affidavit are incorrect. He denied the suggestion that the area under occupation of late Shri Harbans Lal Narula has not changed from time to time in manner as CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 26/74 mentioned in para -9 of his affidavit. He denied the suggestion that the area mentioned in para 10 of his affidavit is not 1305 square yards or that the same is not unauthorised. He denied the suggestion that no order under Section 7 (2) of the Public Premises Act was passed against late Shri Harbans Lal Narula. He denied that contents para 9, 10 & 13 of his affidavit are incorrect.
61 It is pertinent to mention here that an affidavit of Sh. R.T. Gautam, witness on behalf of defendant no. 1 & 2 also filed on record but he was not examined in the court.
62 Defendant no. 3 DDA in order to prove its case examined Shri Shiv Narain, Assistant Director as D-3W1 who tendered his evidence by way of affidavit Ex. D3W1/1 and rely upon the documents i.e notification dated 21.08.1975 as Ex. DW- 3/1A and Possession Certificate to DDA as Ex. DW3/1B.
63 In the cross-examination he deposed that he is working in DDA since January 1983 and is Assistant Director since 2006. He denied the suggestion that there is no mention about the suit property in the notification referred to in para 4 of his affidavit. He denied the suggestion that the suit property was not placed at the disposal of DDA by D-1 for the purpose of development and maintenance as green vide notification dated 21.08.1975. He further denied the suggestion that the possession of the land mentioned in the notification was not taken over by the DDA on 07.01.1996 vide possession proceedings Ex. DW-3/1/B. CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 27/74 64 In further cross-examination he deposed that the late plaintiff had been in possession of the suit property since about 1977 and denied that he was in possession of the suit property since 1947. He deposed that Union of India is the owner of the suit property vide notification Ex. PW-3/1-A which is dated 25.08.1975. He denied the suggestion that Union of India is not the owner of the suit property by virtue of this notification or that suit property is not a government land. He denied that earlier the late plaintiff and after his death his LRs had/have been in possession of 756 sq. yards of the land.
65 Vide order dated 03.08.2015 in view of the submissions on behalf of defendant no. 3, evidence on behalf of defendant no. 3 was closed.
66 It is pertinent to mention here that after closing of defendant's evidence plaintiff has moved an application under order 18 rule 3 read with Section 151 CPC for leading plaintiff's evidence in rebuttal and under order 14 rule 5 read with Section 151 CPC for framing of additional issues. Vide separate order dated 28.02.2017 the application under order 14 rule 5 read with Section 151 CPC of the plaintiff was dismissed with cost of Rs. 10,000/-.
67 Vide order dated 07.03.2017 the application of the plaintiff for leading evidence in rebuttal was allowed and accordingly plaintiff examined Ms Raman Mitter, Superintendent L & DO, Nirman Bhawan as PW-6 who proved the record pertaining to file No. L-III/8/2 (12)/67, the photocopy of the complete file is Ex. PW-6/1 ( Colly) ( OSR) ( Appr. More than 30 pages and having four volumes and eight parts).
CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 28/74 68 I have heard Sh. Manish Kohli, counsel for the plaintiff, Ms Jasmeet Kaur, counsel for defendant no. 1 & 2 and Sh. P.K. Aggarwal, counsel for defendant no. 3, DDA and perused the citation filed by ld. Counsel for the defendant no. 3, Bangalore Development Authority Vs. N. Jayamma Supreme Court, Civil Appeal No. 2238 of 2016 decided on 10.03.2016 and Karnataka Board of Wakf Vs Government of India & Ors, Appeal ( civil) 16899 of 1996 decided on 16.04.2004 and also perused the record.
69 My finding on issues are as under:
Issue No. 1The onus of issue no. 1 is on defendant no. 1 & 3. It is pertinent to mention that defendant no. 2 is Estate Officer and defendant no. 4 is CPWD. The defence of defendant no. 2 was struck off vide order dated 22.01.1998 and defendant no. 4, CPWD has not filed its written statement.
70 Ld. Counsel for the plaintiff submits that defendant no. 1 and defendant no. 3 have contended in their respective written statements that the plaintiff was an unauthorized occupant on the land in question, however, the defendant no. 1 maintained the stand throughout the proceedings that originally the land in question belonged to defendant no. 1 but in 1975 the land was transferred to defendant no. 3 vide notification Ex. DW- 3/1-A. However, as per the defendant no. 3 the defendant no. 1 is the owner of the land in question and only the control and management of the suit land was transferred to defendant no. 3 but defendant have not been able to show actually as to who is the owner of the suit land.
CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 29/74 71 In the written statement of UOI, specific plea has been taken that the plaintiff is unauthorised occupant of government of land. The land in question was acquired vide government notification No. 775 dated 21.12.1911 for formation of new capital of India pre British Era. Thereafter the proceedings for recovery of damages held against the plaintiff for unauthorised use and occupation in the court of Estate Officer, defendant no. 2. The orders of Ld. ADJ dated 12.11.1972 and 15.01.1977 have been highlighted. The details of damages for unauthorised occupant against plaintiff also mentioned since 1959 and onwards. A writ petition also mentioned no. 362/77 decided by the then Hon'ble Mr. Justice S.S. Chadha vide order dated 27.09.1977. The defendant no. 3, DDA also categorically pleaded that plaintiff is merely an unauthorised occupant of the land in question. DDA also pleaded about the proceedings before Estate Officer for recovery of damages against the plaintiff.
72 The defendant No. 1 UOI, examined D1W1, Sh. RVS Mani, Deputy Land & Development Officer who in examination in chief proved the orders of Ld. ADJ, Sh. G.R. Luthra, dated 2.11.1972 Ex. DW-1/1, another order of Ld. ADJ, ld. O.P. Singhla, dated 15.01.1977 Ex. DW-1/2, letter for transfer of land to DDA dated 30.09.98 as Ex. DW-1/3, letter dated 10.03.1988 from DDA to land and Development Officer as Ex. DW-1/4, Inspection report dated 12.09.1994 as Ex. DW-1/5 and copy of order dated 27.09.1977 passed by Hon'ble High Court Ex. DW-1/6.
73 In the detailed cross-examination D1W1, Sh. RVS Mani explained that as per record deceased plaintiff had occupied different parcels of land in different times and denied CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 30/74 the suggestion put to him. He also deposed that as he used to reside Nanakpura has a personal knowledge that there exist coal depot in Nanakpura area. He reiterated the fact that as per record, deceased plaintiff was not asked to shift his coal depot in 1950 from Khacha Khokha to the present suit property. The coal depot was started in 1964. The proceedings under Section 72 of Public Premises Act were initiated and order passed w.e.f 1.1.1959.
74 He admitted that as per record Vigilance Officer of the L & DO had made request of withdrawal of eviction case no. ESO-11-4(22)/77 against deceased Harbans Lal Narula and the copy of the said letter is Ex. PW-1/9. Later on this witness transferred to Ministry of Textile and appeared in 2014 for further cross-examination. He denied the knowledge that deceased plaintiff remained in possession of the suit land for about 54 years till his death in the year 2001.
75 The DDA, defendant no. 3 in order to prove its case examined Shri Shiv Narain, Assistant Director as D3W1 who proved the documents i.e Notification dated 21.08.1975 as Ex. DW3/1A and possession certificate as Ex. DW3/1B. In the detailed cross-examination he deposed that Union of India is owner of this property as per notification Ex. DW3/1A dated 21.08.1975 and denied the suggestion that suit property is not a government land.
76 The document Ex. DW-1/1 is the judgment of the then Ld. ADJ, Sh. G.R. Luthra in P.P. Appeal No. 43/76, titled as "Harbans Lal Narula Vs The land & Development Officer & Ors."
CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 31/74 The plaintiff has not disputed these proceedings and orders. The Estate Officer had issued a notice under P.P. Act. The Section 7(2) of the P.P. Act envisage that payment of rent or damages in respect of public premises and found to be unauthorized occupation. Accordingly, this order the appellant objected to the rate of damages. In the order it has explained that since the Act of 1958 was declared ultarvires to the constitution, therefore, the proceedings were stayed, however commenced with the Act 1971 came into force. The counsel for the plaintiff in the above said P.P. Act proceeding raised the objection that the land is not a public premises. However, it was held that land in question is "public premises". The order Ex. DW-1/1 was not assailed by the plaintiff in the Hon'ble High Court as it was remanded back to assess the damages, however, this order established that the land falls within the definition of "public premises" as per the P. P. Act.
77 The second order is Ex. DW-1/2 of the then ld. ADJ, Sh. O.P. Singla dated 15.01.1977. The plaintiff again challenged the rate of damages for unauthorised occupation. Vide this order installments were fixed by the Ld. ADJ of the recoverable damages and the arrears for the unauthorised occupation. The plaintiff challenged the said order before the Hon'ble High Court vide Civil Writ Petitioner No. 362/77 and Hon'nle Mr. Justice S.S. Chadha decided the same vide order dated 27.09.1977. It was held that there is no justification for grant of any stay in the matter for recovery of amount of damages and plaintiff was directed to pay as per installments fixed by Ld. ADJ and Estate Officer. The Ex. PW-1/9 is the order of Estate Officer wherein the eviction against Harbans Lal Narula, deceased plaintiff was CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 32/74 withdrawn, however, there are no details and circumstances available in which said order was passed. It is also not clear whether, it was due to the fact that Act 1958 was repealed. However, it does not help the plaintiff in any manner.
78 Now coming to the Ex. DW-3/1A which is a notification whereby government of India declared land in question as Nazul as per Section 20 of DDA Act. The land of Nanakpura area is shown at Sl. No. 43 to 45. There is nothing brought on record during the cross-examination or by any other evidence that the suit land does not fall or part of Ex. DW-3/1A. The DDA Act 1957 defines as per DDA ( Disposal of Developed Nazul Land) rules 1981. The Nazul land as per definition under Section 2 (i). The "Nazul land" means the land place at the disposal of Authority and develop or under control and supervision of the authorities under 22 of the Act. Therefore, it is statutory exercise which declared the land the Nazul land, therefore, as per Ex. DW3/1-A notification the land at Sl. No. 42, 43, 44 & 45 of Nanakpura including the suit land becomes the Nazul land.
79 It is pertinent to mention here that although defendants have not produced the notification whereby the new capital of India established in the year 1911 but judicial notice can be taken. It is not disputed that during British era Delhi was made new capital after shifting from Calcutta under the British Rule in year 1911.
80 It is pertinent to mention here that as per pleadings and evidence by the plaintiff he has not placed any legal, valid CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 33/74 documents to show the legal, valid, jural relations with the land in question possessed by him. On the other hand defendants established on record on the basis of notification and the Public Premises Act proceedings that plaintiff since inception occupation of the suit land was not authorised occupant but an encroacher. But substantive judgments of Ld. ADJ and later on challenged before the High Court established that plaintiff had paid the damages for unauthorised occupation of the suit land since 1959.
81 On the basis of above observation and discussion it is proved on record that plaintiff is unauthorised occupant of the suit land belonging to defendant no. 1 and later on defendant no.
3. Therefore issue no. 1 is decided in favour of defendant no. 1 & 3 and against the plaintiff.
82 Issue No. 2Defendant no. 3 has taken a specific plea in the written statement that as per Section 15 of the Public Premises ( Eviction of Unauthorised Occupants) Act, 1971, jurisdiction of the court is barred to entertain any proceedings under the said Act. Therefore, suit is barred and this court has no jurisdiction.
83 Ld. Counsel for the plaintiff submit that the Estate officer exercising jurisdiction under the Public Premises Act, 1971, is not competent to decide upon the issues of title under the Public Premises Act, 1971, therefore, the jurisdiction of this Hon'ble Court is not barred by Section 15 of he Pubic Premises Act, 1971 and Ld. Counsel for the plaintiff rely upon the judgment of DCM Limited Vs. Delhi Development Authority 2013 (1360 DRJ, 688 ( DB).
CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 34/74 84 I have heard and gone through the respective submission of the counsel for the parties. I have also gone through the written submissions filed on behalf plaintiff and judgments and my finding on issue no. 2 is as under:
85 The Section 15 of the Public Premises ( Eviction of Unauthorised Occupants) Act, 1971 is reproduce herein:-
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 5 A, or
(c) the demolition of any building or other structure made, or ordered to be made, under Section 5B, 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
(e) the recovery of -
(i) costs of removal of any building, structure or fixture or goods, cattle or other animal under Section 5 A, or
(ii) expenses of demolition under section 5 B, 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,
CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 35/74
costs of removal, expenses of demolition or costs awarded to the Central Government or the statutory authority.
86 After going through the Section 15 of Public Premises Act, there is bar for the proceedings of eviction against unauthorised occupant, removing of building, structure etc, demolition of any building or other structure made, sealing of any erection or work, arrears of rent payable and recovery of costs of removal of any building, structure etc., expenses of demolition, costs etc. The Section 15 does not bar for adjudication of the civil rights of parties qua the suit land in question.
87 The plaintiff is claiming to be the owner of the suit land. The P.P. Act does not empower the authorities to determine the rights in respect of the suit land. Therefore, in my considered opinion Section 15 of P.P. Act does not bar the trial of present suit. Therefore, issue no. 2 is decided in favour of plaintiff and against the defendant no. 1 & 3.
88 Issue No. 3Issue No. 3 is framed on the basis of specific plea of defendant no. 3 in the written statement that present suit is not maintainable due to the absent of any legal and valid notice as per Section 53 (B) of DDA Act.
89 Ld. Counsel for the plaintiff submits that since the application bearing I.A. No. 8441/93 filed by the plaintiffs under Section 80 (2) CPC, 1908 was allowed vide order dated 24.09.1993 by the Hon'ble High Court of Delhi, the plaintiffs were not required to serve any notice upon the defendant no. 3 under CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 36/74 Section 53-B of the DDA Act, 1957. Moreover the defendant No. 3 was well aware of the unauthorised occupation of the plaintiffs and in fact had issued no objection certificate to the plaintiffs on 14.09.1987 (Ex. PW-1/7) for installation of electric/water connections etc. 90 I have heard and considered the respective submissions of ld. Counsel for the parties. I have also gone through the judgment relied on by ld. Counsel for the plaintiff in respect of this issue i.e Yashod Kumar & Anr Vs MCD & Ors. 111 ( 2004) DLT 33.
91 Let us peruse the Section 53 (b) of D.D. A. Act deals with the circumstances where the suit is to be instituted for recovery of immovable property or for declaration of title after the expiry of six months from the date of cause of action arises. It also envisages two months notice in writing to the authority from the explicit cause of action. However, it excluded the relief of injunction.
92 Ld. Counsel for the plaintiff heavily relied on Ex. PW- 1/7 a letter dated 14.09.1987. The letter is mis-interpretated. The subject is typed in the letter is in reference to the application for "No objection" filed by plaintiff on 31.08.1987. It is clearly mentioned that as per above subject. The area is in unauthorized occupation is 286 sq. yards and used for commercial purpose. The No objection is given only for the protection of the plaintiff things from sun, rain etc. It is not a "No objection" for occupation and use of the unauthorized land by the plaintiff. In my opinion this letter is not of much help to the plaintiff.
CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 37/74 93 I have gone through the plaint. As per the title, plaintiff is claiming relief of declaration and permanent injunction. In Para 23 it has been pleaded that the present suit is filed for seeking exemption to sue defendant no. 1 without serving the requisite Notice under Section 80 C.P.C. In view of the urgency of the matter. Similarly no specific plea taken about Section 53 (B) of DDA Act, however, the intention is clear that due to permanent injunction there is urgency of the matter and exemption has been sought under Section 80 C.P.C because plaintiff was facing great threat. In my considered opinion Section 53 ( B) sub clause (3) of DDA Act also open a window in case of permanent injunction there is exemption of the notice. Therefore, in my considered opinion the present suit is maintainable in the absence of notice under Section 53 (B) of DDA Act. Hence issue no. 3 is decided in favour of the plaintiff and against the defendants.
94 Issue no. 4 Issue no. 4 is framed on the basis of written statement of defendant no. 3 where objection taken by defendant no. 3 for valuation of the suit for the purpose of court fees and jurisdiction.
95 ld. Counsel for the plaintiff submits that the present suit has been properly valued for the purpose of jurisdiction and court fees in accordance with law and requisite court fees have been paid accordingly.
96 The fundamental principle is that is the plaintiff prerogative to value the suit for the purpose of jurisdiction and CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 38/74 court fee. The plaintiff valued the relief of declaration at Rs. 5,25,000/- on the date of filing of the suit in the year 1993. The Hon'ble High Court as pecuniary jurisdiction of the court itself in the same has been fixed. Similarly for permanent injunction court fees has been valued for Rs. 200/- so the requisite court fees of Rs. 20 affixed. In my considered opinion, the suit is properly valued by the plaintiff for the purpose of court fees and jurisdiction, therefore issue no. 4 is decided in favour of the plaintiff and against defendants.
97 Issue no. 5 Ld. Counsel for the plaintiff submits that since the order passed by the Hon'ble High Court in CW No. 695-W/77 ( Ex. DW-1/6) deals with the imposition of damages for unauthorized occupation by the Estate Officer under the Public Premises Act, 1971 and not with the issue of rights or title of the plaintiffs in the suit land, therefore, the question of present suit being bared by res judicata does not arise.
98 I have considered the respective submission of both the counsels and perused the written submissions filed on behalf of plaintiff on this issue.
99 I have also gone through the order of Hon'ble Mr. Justice S.S. Chadha dated 27.09.1977. The fact in issue before the Hon'ble High Court was the appeal arising from the impugned order of ld. ADJ, the appellate court under P.P. Act with regard to levy of damages and recovery of fixing installments in the P.P. Act, however, before the Hon'ble High Court there was no question of determination of civil rights qua the ownership of the CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 39/74 land in question. The Hon'ble High Court in the Civil Writ Petition has not determined the legal right of ownership between the parties, therefore, principle of resjudicata is not applicable in the present suit. Therefore, there is no bar of the present suit to be tried by civil court to determine the legal rights of the parties with regard to ownership, title and interest. In my considered opinion issue no. 5 is decided in favour of the plaintiff and against the defendants.
100 Issue No. 6Ld. Counsel for the plaintiff in the written submission submitted that so far as relief (a) is concerned, the plaintiffs have successfully proved their case and submitted that as per own admission of the defendant no. 1, the plaintiffs are in possession of the suit land, at lease since 01.10.1959 this fact was within the knowledge of defendant no. 1. He further submitted that rehabilitation of the plaintiffs and/or the allotment of an alternate site to the plaintiffs was in consideration of the defendant No. 1 and he has proved numerous documents in this regard.
101 It is stated that plaintiffs have duly proved the site plan of the suit land ( Ex. PW-1/11) and the area of the suit land as mentioned in the said site plan and defendants have not able to disprove the said site plan nor they filed any site plan of the suit land showing otherwise and the entire cross-examination of PW-1, Mr. Davinder Kumar Narula has gone unchallenged and unrebutted.
102 It is stated that the possession of the plaintiffs has always been open, continuous, hostile and uninterrupted, the CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 40/74 defendants admittedly have not taken any steps for eviction of the plaintiffs in accordance with law. The defendants did initiate proceedings under the P.P. Act , 1971 for the imposition of damages for unauthorized occupation but consciously did not choose to take any action for eviction of the plaintiffs in accordance with law. On the other hand vide Ex. PW-1/9, the Estate Officer of the L & DO accepted the request of the Vigilance Officer for withdrawal of the eviction proceedings against late Shri Harbans Lal Narula. The defendants have acquiesced to the right and title of the plaintiffs with respect to the land in question and relied upon the judgments in P. Dass Muni Reddy Vs P. Appa Rao, AIR 1974 SC 2089, Provash Chandra Daluri & Anr. Vs. Biswanath Banarje & Anr. AIR 1989 SC 1834, Swaran Singh Banda Vs Manpreet Singh Chhatwarl & Ors, 2009 ( 109) DRJ 482 ( DB).
103 Ld. Counsel for the plaintiff further submitted that moreover by the act and conduct also, the defendants have been estopped form evicting the plaintiffs from the suit land and he relied on the Section 115, Indian Evidence Act, 1872, judgments in Union of India & Ors. Vs M/s Indo-Afghan Agencies Ltd. ( 1968) 2 SCR 366, M/s Motilal Padampat Sugar Mills Co. Ltd. Vs. State of Uttar Pradesh and Ors. AIR 1979 SC 621, Century Spinning & Manufacturing Co. Ltd. & Anr. Vs. The Ulhasnagar Municipal Council & Anr. ( 1970 ) 3 SCR 854 and Union of India and Ors, Vs Godfrey Philips India Ltd., AIR 1986 SC 806.
104 Ld. Counsel for the plaintiff further submitted that since the possession of the plaintiffs in the suit land is open, CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 41/74 hostile, continuous and within the knowledge of the defendants and continued for more than 65 years, the defendants have lost their right to evict the plaintiffs from the suit land in accordance with law and as a consequence the plaintiffs have perfected their title over the suit land by virtue of adverse possession. The fact that the defendants were claiming damages from late Shri Harbans Lal Narula, it shows that his possession in the suit land was always unauthorizedand hostile to the defendants. In support of his contentions in respect of this issue, ld. Counsel rely upon Article 112 of the Limitation Act, 1963, Karnataqka Board of Wakf Vs. Goverment of India & Ors. ( 2004) 10 SCC 779, Secy. Of State Vs Debendra Lal Khan, AIR 1934 PC 23.
105 I have considered the respective submission of both the counsels and perused the written submissions filed on behalf of plaintiff on this issue. My finding on this issues is as under:-
106 The issue no. 6 is in respect of the main relief of the plaintiff in the suit. The plaintiff is claiming the relief of decree of declaration of the owner of the site measuring 726 Sq. Yds situated at Opposite F-345 Nanakpura, South Moti Bagh, New Delhi and declaration for an alternative site/shop/accommodation on proper rehabilitation in a regular alternative site/shop/accommodation of the same size.
107 It is pertinent to mention here that during the course of the final arguments it is admitted by counsel for the plaintiff that prayer (b) is beyond the jurisdiction of this court and same is not pressed and therefore the declaration to the fact on the basis CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 42/74 of decree in favour of plaintiff for declaring him entitle for an alternative site/shop/accommodation or proper rehabilitation in a regular alternative site/shop/ accommodation stand withdrawn by the plaintiff being beyond the jurisdiction of this court.
108 The plaintiff is claiming the declaration to the effect that he is the owner of site measuring measuring 726 Sq. Yds situated at Opposite F-345 Nanakpura, South Moti Bagh, New Delhi and in total plaintiff examined five witnesses in order to discharge the onus of this issue. The testimony of PW-1 Sh. Davinder Kumar Narula, son of plaintiff, PW-2 Ms Rajni, UDC from L & DO office, Sh. Hukam Chand, UDC from MCD, South Zone, Green Park, New Delhi, PW-4 Sh. Vijay Kumar, Steno, from Labour Department, Sham Nath Marg, Delhi, PW-5 Sh. Balbir Singh, Head Clerk, from Deputy Labour Commissioner and PW-6 Ms Raman Mitter, Suptd. From L & DO in rebuttal, discussed in above in detail.
109 PW-2 Ms Rajni, UDC from L & DO office brought record regarding the alternative allotment of fuel Depot in Moti Bagh-II, New Delhi pertaining to deceased plaintiff. In the examination in chief, PW-2 stated that one application dated 13.10.69 is available on record alongwith affidavit of deceased. In the cross- examination, according to record, deceased plaintiff was unauthorized occupant of 200 sq yards as per letter dated 18.06.73.
110 PW-3 proved the record pertaining grant of license to deceased plaintiff for coal depot at premises opposite B-22, South Moti Bagh, Delhi belongs to year 1960. As per the record CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 43/74 brought, the deceased plaintiff was carrying trade of fuel in an improvised Jhuggi/Khokha. The license was lastly renewed on 25.04.2000.
111 PW-4 proved the registration certificate of coal depot in the name and style "Harbans Lal Davinder Kumar coal Depot"
dated 21.11.1988 at opposite E-60, Near Post Office Nanakpura, Moti Bagh-II, New Delhi but the witness has not produced the entire record and failed to prove that whether it is for one year or is a permanent one.
112 PW-5 Sh. Balbir Singh, also proved the same registration certificate Ex. PW-5/1.
113 PW-6 Ms Raman Mitter in rebutal proved the record pertaining to file No. L-III/8/2 912)/67. The testimony of these plaintiff witnesses established that the Harbans Lal Narula was in unauthorised possession of the suit property initially to the extent of 200 sq. yards and till filing of the suit to 726 sq yards as claimed by him. It is pertinent to mention here that during the cross-examination of DW-1, Sh. RVS Mani, one inspection report has been referred and the area was stated to be 1305 pertaining to year 1994 and order as per Ex. DW-1/5 is dated 12.09.1994.
114 The testimony of PW-1 Davinder Kumar Narula discussed hereinaabove in detail also rely on the documents Ex. PW-1/1, Notices of assessment of Sale Tax for the year 1963, Telephone connection application pertaining to year 1965, Original letters issued from the Food & Supplies Department as Ex. PW-1/5 & 6, grant of cement license in 1987. It is admitted CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 44/74 on record that the beside the coal depot plaintiff started the business of building material and also soring by constructing partial boundary wall. There is reference of Gadgil Assurance Scheme also. The letter of Vigilance Officer of L & DO for withdrawal of eviction proceedings also rely as Ex. PW-1/9.
115 The PW-1 son of plaintiff alleged the possession of the suit property to the extent of 726 Sq. Yards. Further admitted that initially coal depot was started by putting Kachaa Khokha, South at Moti Bagh, opposite Shanti Niketan and the area was 10x10 feet and presently he is running a business of building material as well. He further denied the knowledge that the said Kachaa Khokha was removed at the visit of queen of U.K. The business of building material started in 1985-86 and shifted to new site having area about 726 sq. yards in the year 1950. He admitted that no written permission was given to his father by defendant no. 1 & 2 to occupy new site. No agreement was executed between his deceased father and defendant no. 1. He admitted that proceedings under P.P. Act were initiated for claiming damages for unauthorized occupation of the suit land. He denied the knowledge whether in the year 1977 the Hon'ble High Court had directed his deceased father to pay the damages for unauthorized occupation to L & DO. He admitted that no municipal number has been allotted to the suit premises. He admitted that he has not paid any damages to government agency after 1977.
116 The testimony of PW-1 established on record that there is no legal, valid document executed by defendant no. 1 or defendant no. 3 with regard to the suit land in favour of deceased CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 45/74 plaintiff or his son Sh. Davinder Kumar Narula. It is further proved on record that order for payment of damages filed against plaintiff since 1959. the order of Ld. ADJ Sh. G.R. Luthra, Ex. DW- 1/1 dated 02.11.1972 and Ex. DW-1/2 of Ld. ADJ, Sh. O.P. Singla dated 15.01.1977 and finally the order of Hon'ble High Court dated 27.09.1977 established on record that deceased plaintiff was directed to pay damages for unauthorized occupation of public premises since 1959.
117 On the other hand plaintiff failed to prove any legal relation with the suit property. It is the case of the plaintiff that UOI, defendant no. 1 never allotted any site or alternative site to the plaintiff although record produce from L & DO but there is no document on record in favour of the deceased plaintiff or his son Sh. Davinder Kumar Narula for allotment of the site of the suit premises. It is admitted case of the plaintiff that he came as refugees after partition in 1947 and occupy Kachha Khokha of 10x10 sq yards. But surprisingly story put up that local Superintendent shifted the plaintiff at the visit of Queen after independence to a new site. However no description has been given about the new site, no address is given and no document proved on record how this local Superintendent shifted the Kachaa Khokha of the deceased plaintiff to a new site. This story is unbelievable. The plaintiff being encroached the land pertaining to initially to Union of India, defendant no. 1 and later on transferred to defendant no. 3, DDA as Nazul land.
118 It is further pertinent to mention here that plaintiff initially unauthorizedly occupied Kachaa Khokha of 10x10 sq ft . thereafter then increased the encroachment area in the year CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 46/74 1994 as per inspection report 1305 and extended his business. It is pertinent to mention here that officials of the concerned authorities of issuing license of fuel depot, registration of shop etc. did not apply their mind to ask for all the documents with regard to the ownership of the shop or the suit land and granted blindly the license and registration. It may be possible that under the influence or favourable deceased plaintiff was granted such license to carry on license business and extended the building material business as admitted on record. In my considered opinion it is established on record that plaintiff is neither the allottee, nor owner of the suit premises to the extent of 726 or as per Ex. DW-1/5 1305 sq. ft and he has no right, title and interest in the suit premises.
119 Ld. Counsel for the plaintiff vehemently argued about the application of principle of adverse possession and declaring the plaintiff as owner on the basis of adverse possession.
120 At the outset, it is proved on record by defendant no. 1 & 3 that possession of the plaintiff is unauthorized since 1959 and damages were levied against him by the Estate Officer and finally up to High Court it was up held. Hence it is proved on record that possession was unauthorized and not hostile.
121 The plea of adverse possession has been decided by the Hon'ble Supreme Court in the case of State of Haryana Vs Mukesh Kumar and Others ( 2011) 10 Supreme Court Cases 404 and the relevant paras are as under: -
Historical background
26. The concept of adverse possession was CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 47/74 born in England around 1275 and was initially created to allow a person to claim the right of "seisin" from his ancestry. Many felt that the original law that relied on "seisin" was difficult to establish, and around 1623 a stature of limitation was put into place that allowed for a person in possession of property for twenty years or more to acquire title to that property.
This early English doctrine was designed to prevent legal disputes over property rights that were time-consuming and costly. The doctrine was also created to prevent the waste of land by forcing the owners to monitor their property or suffer the consequences of losing title.
27. The concept of adverse possession was subsequently adopted in the United States. The doctrine was especially important in the early American periods to cure the growing number of the disputes. The American version mirrored the English law, which is illustrated by most States adopting a twenty-year stature of limitation for adverse possession claims. As America has developed to the present date, property rights have become increasingly more important and land has become limited. As a result, the time period to acquire land by adverse possession has been reduced in some "States to as little as five years, while in others, it has remained as long as forty years.
The United States has also changed the traditional doctrine by preventing the use of adverse possession against property held by a CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 48/74 governmental entity.
28. During the colonial period, prior to the enactment of the Bill of Rights, property was frequently taken by the States from private landowners without compensation. Initially, undeveloped tracts of land were the most common type of property acquired by the Government, as they were sought for the installation of public road. Under the colonial system it was thought that benefits from the road would, in a newly opened country, always exceed the value of unimproved land.
29. The doctrine of adverse possession arose in an era where lands were vast particularly in the United States of America and documentation sparse in order to given quierus to the title of the possessor and prevent fanciful claims from erupting. The concept of adverse possession exists to cure potential actual defects in real estate titles by putting a statute of limitation on possible litigation over ownership and possession. A landowner could be secure in title to his land; otherwise, long-lost heirs of any former owner, possessor or lien holder of centuries past could come forward with a legal claim on the property. Since independence of our country we have witnesses registered documents of title and more proper, if not perfect, entries of title in the government records. The situation having changed, the statute calls for a change.
30. In Hemaji Waghaji Jat Vs Bhikhabhai Harijan (one of us Bhadari, J.), this Court had CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 49/74 an occasion to examine the English and American law, on" adverse possession". The relevant paragraphs of that judgment ( para
24) are reproduced as under: ( SCC pp. 525-
26).
" 24. In a relatively recent case in P.T. Munichikkanna Reddy v. Revamma this court again had an occasion to deal with the concept of adverse possession in detail. The court also examined the legal position in various countries particularly in English and American systems. We deem it appropriate to reproduce relevant passages in extenso. The court dealing with adverse possession in paras 5 and 6 observed as under:
5. Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile. ( See Downing V. Bird, Arkansas Commemorative Commission Vs City of Little Rock, Monnot Vs Murphy and City of Rock Springs Vs Sturm).
6. Efficacy of adverse possession law in most jurisdictions depends on strong limitation statutes by operation of which right to access the court expires through efflux of time. As against rights of the paper-owner, in the context, of adverse possession, there evolves a set of competing rights in favour of the CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 50/74 adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off one's right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or colour of title. (See American Jurisprudence, Vol.3, 2d, p. 81.) It is important to keep in mind while studying the American notion of adverse possession, especially in the backdrop of limitation statutes, that the intention to disposses cannot be given a complete go-by. Simple application of Limitation shall not be enough by itself for the success of an adverse possession claim".
31. A person pleading adverse possession has no equities in his favour since he is trying to defeat the rights of the true owner. It is for him to clearly plead and establish all facts necessary to establish adverse possession. Thought we got this law of adverse possession from the British, it is important to note that these days, the English courts are taking a very negative view towards the law of adverse possession. The English law was amended and CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 51/74 changed substantially to reflect these changes; particularly in light of the view that property is a human right adopted by the European Commission.
32. This court in Revamma observed that to understand the true nature of adverse possession, Fairweather v. St Marylebone Property Co. Ltd. Can be considered whre the House of Lords referring to Taylor V. Twinberrow termed adverse possession as a negative and consequential right effected only because somebody else's positive right to access the court is barred by operation of law. As against the rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possession, who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property.
33. The right to property is now considered to be not only a constitutional or statutory right but also a human right. Human rights have already been considered in the realm of individual rights such as the right to health, right to livelihood, right to shelter and employment, etc. But now human rights are gaining a multifaceted dimensions. Right to property is also considered very much a part of the new dimension. Therefore, even the claim of adverse possession has to be read in that context.
34. The changing attitude of the English CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 52/74 courts is quite visible from the judgment of Beaulane Properties Ltd. Vs. Palmer. The court here tried to read the human rights position in the context of adverse possession. But what is commendable is that the dimensions of human rights have widened so much that now property dispute issues are also being raised within the contours of human rights. With the expanding jurisprudence of the European Courts of Human Rights, the Court has taken an unkind view of the concept of adverse possession.
35. Paras 26-29 of Hemaji Waghaji Jai are set out as under ( SCC 526-28)
26. With the expanding jurisprudence of the European Court of Human Rights, the Court has taken an unkind view of the concept of adverse possession in the recent judgment of JA Pye ( Oxford) Ltd. Vs. United Kingdom which concerned the loss of ownership of land by virtue of adverse possession. In the said case, 'the applicant company was the registered owner of a plot of 23 hectares of agricultural land. The owners of a property adjacent to the land, Mr. and Mrs Graham ( the Grahams) occupied the land under a grazing agreement. After a brief exchange of documents in December, 1983 a chartered surveyor acting for the applicants wrote to the Grahams noting that the grazing agreement was about to expire and requiring them to vacate the land. The Grahams continue to use the whole of the disputed land for farming CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 53/74 without the permission of the applicants from September 1998 till 1999. In 199, Mr. Graham moved the Local Land Registry against the applicant on the ground that he had obtained title by adverse possession. The grahams challenged the applicant company's claims under the Limitation Act, 1980 ( the 1980 Act) which provides that a person cannot bring an action to recover any land after the expiration of 12 years of adverse possession by another.
27. The judgment was pronounced in JA Pye (Oxford) Ltd. V Graham. The court held in favour the Grahams bu went on to observe the irony in law of adverse possession. The court observed that the law which provides to oust an owner on the basis of inaction of 12 years is 'illogical and disproportionate'. The effect of such law would 'seems draconian to the owner' and ' a windfall for the squatter'. The court expressed its astonishment on the prevalent law that ousting an owner for not taking action within limitation is illogical. The applicant company aggrieved by the said judgment filed an appeal and the Court of Appeal reversed the High Court decision. The Grahams then appealed to the House of Lords, which allowed their appeal and restored the order of the High Court.
28. The House of Lords in JA Pya(Oxford) Ltd. v. Graham observed that the Grahams had possession of the land in the ordinary sense of the work, and, therefore, the applicant company had been dispossessed of it withing CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 54/74 the meaning of the Limitation Act of 1980.
29. We deem it proper to reproduce the relevant portion of the judgment in P.T. Munichikkanna Reddy Vs Revamma ( SCC P.79 para 51-52)
51. Thereafter the applicants moved the European Commission of Human Rights ( ECHR) alleging that the United Kingdom law on adverse possession, by which they lost land to a neighbour, operated in violation of article 1 of Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms ( "the Convention").
52. It was contended by the applicants that they had been deprived of their land by the operation of the domestic law on adverse possession which is in contravention with Article 1 of Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms ( "the Convention") which reads as under:
"Every natural or legal person is entitled to the peaceful enjoyment of his possession. No one shall be deprived of his possession except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 55/74 This court in Revamma case also mentioned that the European Council of Human Rights importantly laid down three-pronged test to judge the interference of the Government with the right of 'peaceful enjoyment of property ( SCC p. 79, para 53)
53.....( In ) Beyeler Vs Italy it was held that the "interference" should comply with the principle of lawfulness and pursue a legitimate aim (public interest) by means reasonably proportionate to the aim sought to be realised.' The Court observed: ( Revamma case SCC pp 79-80 paras 54-56)
54. ....The question nevertheless remains whether, even having regard to the lack of care and inadvertence on the part of the applicants and their advisers, the deprivation of their title to the registered land and the transfer of beneficial ownership to those in unauthorized possession struck a fair balance with any legitimate public interest served.
In these circumstances, the, court
concludes that the application of the
provisions of the 1925 and 1980 Acts to
deprive the applicant companies of their title to the registered land imposed on them an individual and excessive burden and upset the fair balance between the demands of the public interest on the one hand and the applicants' right to the peaceful enjoyment of their possession on the other.
CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 56/74 There has therefore been a violation of Article 1 of Protocol 1"
55. The question of the application of Article 41 was referred to for the Grand Chamber. Hearing of the ECHR. This case sets the field of adverse possession and its interface with the right to peaceful enjoyment in all its complexity.
56. Therefore, it will have to be kept in mind that the courts around the world are taking an unkind view towards statutes of limitation overriding property rights"
(emphasis in original )
36. In Hemaji Wahahaji Jat Case this court ultimately observed as under: - ( SCC p.529 paras 32-33) "32. Before parting with this case, we deem it appropriate to observe the law of adverse possession which outs a owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law as, it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank treswpasser or who had wrongfully taken possession of the property of the true owner.
33. We fail to comprehend why the law CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 57/74 should place premium on dishonesty by legitimising possession of a rank trespasser and compelling the owner to lose his possession only because of his inaction in taking back the possession within limitation."
Fifth Amendment of the US Constitution- a principle of a civilised society.
37. Another important development in the protection of property rights was the Fifth Amendment, James Madison was the drafter and key supporter for the Fifth Amendment.
The Fifth Amendment states; " nor shall
private property be taken for public use,
without just compensation". The main issue is to pay just compensation for acquiring the property. There are primarily two situations when a landowner may obtain compensation for land officials transferred to or depreciated by the Government. First, an owner many be entitled to compensation when a government entity intentionally acquires private property through a formal condemnation proceeding and without the owner's consent. The State's power to take property is considered inherent through its eminent domain powers as a sovereign. Through the condemnation proceedings, the Government obtains the necessary interest in the land, and the Fifth Amendment requires that the property owner be compensated for this loss.
38. The second situation requiring compensation under the Fifth Amendment occurs when the Government has not officially CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 58/74 acquired private property through a formal condemnation proceeding, but "nonetheless takes property by physically invading or appropriating it". Under this scenario, the property owner, at the point in which a "taking" has occurred, has the option of filing a claim against the government actor to recover just compensation for the loss. When the landowner sues the Government seeking compensation for a taking, it is considered an inverse condemnation proceedings, because the landowner and not the Government is bringing the cause of action.
39. We inherited this law of adverse possession from the British. Parliament may consider abolishing the law of adverse possession or at least amending and making substantial changes in the law in the larger public interest. The government instrumentalities- including the police- in the instant case have attempted to possess land adversely. This, in our opinion, is a testament to the absurdity of the law and a black mark upon the justice system's legitimacy. The Government should protect the property of a citizen- not steal it. And yet, as the law currently stands, they may do just that. If this law is to be retained, according to the wisdom of Parliament, then at least the law must require those who adversely possess land to compensate the title owners according to the prevalent market rate of the land or property in question. This alternative would provide CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 59/74 some semblance of justice to those who have done nothing other than sitting on their rights for the statutory period, while allowing the adverse possessor to remain on property.
While it may be indefensible to require all adverse possessors- some of whom may be poor- to pay market rates for the land they possess, perhaps some lesser amount would be realistic in most of the cases. Parliament may either fix a set range of rates or to leave it to the judiciary with the option of choosing from within a set range of rates so as to tailor the compensation to the equities of a given case.
40. Parliament must seriously consider at least to abolish "bad faith" adverse possession i.e adverse possession achieved through intentional trespassing, actually believing it to be their own could receive title through adverse possession, sends a wrong signal to the society at large. Such a change would ensure that only those who had established attachments to the land through honest means would be entitled to legal relief.
41. In case, Parliament decides to retain the law of adverse possession, Parliament might simply require the adverse possession claimants to possess the property in question for a period of 30 to 50 years, rather than a mere 12. Such an extension would help to ensure that the successful claimants have lived on the land for generations, and are, therefore, less likely to be individually, culpable for the trespass ( although their forebears might). A CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 60/74 longer statutory period would also decrease the frequency of adverse possession suits and ensure that only those claimants most intimately connected with the land acquire it, while only the most passive and unprotective owners lose title."
122 Similar principle is discussed in judgment of Munichikkanna Reddy Vs Revamma ( 2007) 6 SCC 59.
123 Now applying the principal laid down by Apex Court in state of Haryana case ( Supra) in the present suit the plaintiff is encroacher and unauthorized occupant of the suit premises cannot claim or inherit of his L.RS the suit premises on the basis of principle of adverse possession. The possession of wrong of tress passers, unauthorized cannot be convert into the legal ownership in the present facts and circumstances of the case.
124 Ld. Counsel for the plaintiff further vehemently pleaded the principle of acquiescence. In my considered opinion I do not find that at any point of time the defendant no. 1 or defendant no. 3 acquiesce their rights to the plaintiff unauthorized of the suit property. The proceedings were initiated against him for payment of damages and Estate Officer passed a detailed order for payment of damages since 1959. It has been up held by the Hon'ble High Court and set at rest that plaintiff had occupied public premises being unauthorised occupant and liable to pay the damages. The DDA step into the shoes of Union of India by notification Ex. DW3/1A & 1B on 21.08.1975. Now the suit property sands as Nazul land. The Nazul land cannot be claimed by any private person. The payment of damages by the CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 61/74 plaintiff established that although action taken by defendants against the unauthorized occupant of the suit premises by the deceased plaintiff and now his son. The plaintiff although not taken any independent action of evictions may be because of pendency of the present suit wherein interim relief has been granted to the plaintiff. But it is not established that either defendant no. 1 or defendant no. 3 at any point of time acquiesce their right with regard to suit property. Therefore, I find no merit in the plea of the counsel for the plaintiff in this regard.
125 On the basis of the above observation and discussion issue no. 6 is decided against the plaintiff and in favour of defendants.
126 Issue no. 7 This issue is also framed on the basis of claim of plaintiff claiming that defendants be restrain for permanent injunction from dispossess the plaintiff from the coal/building material shop.
127 Ld. Counsel for the plaintiff submits since the plaintiff has successfully proved its case for grand of declaration of the ownership/allotment of the land in question, therefore, plaintiff is entitled for relief of injunction.
128 At the out set it is pertinent to mention that while deciding issue no. 6 it has been held that plaintiff has no legal right, title in respect of the suit property.
CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 62/74 129 Before appreciating the respective contention of both the parties, examination and scrutiny of evidence of parties. Let us peruse the law laid down by the Apex Court. I would like to refer to certain judgments of Hon'ble Supreme Court with regard to the fact that where a person come within the category of encroacher. The Hon'ble Apex Court in the matter of Premji Ratansey Shah vs. Union of India, 1994 SCC (5) 547 held as under:
"4. it is seen that in a suit as originally framed, they sought for a declaration that the award made in respect of the land was void, inoperative and does not bind the petitioners. But that relief had been given up. Thereby, the title of the land of the railways have not been questioned. With award made under Section 30, the vendors of the petitioners got themselves bound by the above award under Section 12 of the Act. It is also seen that the two awards had become final and possession was delivered to the railways by the Land Acquisition Officer on 24.2.1960. Thus defendants 3 and 4 had no ghost of right, title or interest in the lands acquired from the original owner Maibal. The said sale is a void sale and the petitioners, therefore, cannot derive any interest under the agreement of sale to resist the possession of the lawful owner nor could the declaration sought for be given. The question, therefore, is whether an injunction can be issued against the true owner. Issuance of an order of injunction is absolutely a discretionary and equitable relief.
CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 63/74 In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere asking such relief should be given. Injunction is a personal right under section 41 (j) of the Specific Relief Act, 1963, the plaintiff must have personal interest in the matter. The interest of right not shown to be in existence, cannot be protected by injunction.
5. It is equally settled law that injunction would not be issued against the true owner. Therefore, the Courts below have rightly rejected the relief of declaration and injunction in favour of the petitioners who have no interest in the property. Even assuming that they had any possession, their possession is wholly unlawful possession as against the owner. Pretest of dispute of identity of the land should not be an excuse to claim injunction against true owner".
130 In the mater of Mahadeo Savlaram Shelke v. The Puna Municipal Corporation, (1995) 3 SCC 33 it is held as under:
"9. It is settled law that no injunction should be granted against the true owner at the instance of persons in unlawful possession. It is true that the appellants placed reliance in their plaint on the resolutions passed by the Municipality on 11.11.72 and 29.11.72. A reading of those resolutions would prima facie CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 64/74 show that possession would be taken where the acquisition proceedings have become final and land acquisition proceedings would not be pursued where award has not been made is on the date of the resolutions. In this case, since the acquisition proceedings have become final then necessarily possession has to be taken by the Corporation for the public purpose for which the acquisition arises whether the appellants can seek reliance on two resolutions. They furnish no prima facie right or title to the appellants to have perpetual inunction restraining the Corporation from taking possession of the building. The orders of eviction were passed by due process of law and had become final. Thereafter no right was created in favour of the appellants to remain in possession. Their possession is unlawful and that therefore, they cannot seek any injunction against the rightful owner for evicting them. There is, thus neither balance of convenience nor irreparable injury would be cause to the appellants."
131 In the mater of Tamil Nadu Housing Board vs. A. Viswam(dead) by Lrs, 1996 (8) SCC 259, it is held as under:
"11. From the facts in this case, it would be clear that possession must have been taken of the land consisting of 339 acres including 1.33 acres in Survey No. 140/4. It is seen that when the land was acquired for planned development of the city and a large chunk of building has already been buolt up and the CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 65/74 land admeasuring about 1 acre 52 cents has been set apart for park purpose, obviously along with other lands, the disputed land was taken possession of and construction was made as per plans. Would it be possible for the appellants, without delivery of possession to the Housing Board, to construct such massive constructions and leave out only this part of the land bearing Survey No. 140/4 which was set apart fro public purpose, namely, public amenity of park? The marking of the plan would emerge only after the land is taken possession of and demarcation there of is made and constructions are carried out. It is erroneous to believe that possession still remained with the respondents and the LAO had not taken possession only of this piece of land. It is not the case of the respondent that he resisted taking possession of the land by LAO and thereafter the LAO took no action to have him dispossessed. The Single Judge has not adverted to these material facts and the circumstantial evidence available from the established facts. He proceeded to consider on the premise that since the acquired land was not used for building purpose and possession was not taken, acquisition stood lapsed. Equally erroneous is the reasoning given by the District Judge. The High Court is wholly illegal in its conclusion. The District Judge proceeded on the premise that the revenue records do not show the name of the appellant mutated and the land was not registered in the CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 66/74 name of the appellant. These circumstances are wholly illegal and unjustified. Section 11 (4) read with Section 51 of the Act itself exempts registration of the, land acquired under the Act. The District Judge had obviously ignored the statutory provisions. It was unnecessary for the Housing Board to have the lands mutated in the revenue records and have its name entered therein. It was not for its purpose. It was for public purpose i.e. for construction of the houses and allotment there of to the needy persons. After the construction of the houses, the public park stood vested in the acquisition. Obviously, at this stage the Municipality would have come to take possession exercising its jurisdiction when illegal encroachment was found on the land. At this stage, notice was given to the respondents and the respondents filed the suit for perpetual injunction.
12.Thus considered, the title of the land in Survey No. 140/4 having been vested in the appellant, to whomsoever it belonged earlier, it stood divested from him/them and no one can lay any claim to the said acquired land once over and claim injunction on that basis. The injunction, therefore, cannot be issued against the true owner, namely, the Housing Board in whom the land ultimately stood vested and then stood transferred to the Municipal Corporation. A trespasser cannot claim injunction against the owner nor can the Court issue the same."
CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 67/74 132 In the mater of Ramniklal Bhutta vs. State of Maharashtra, 1997 (1) SCC 134 it is held as under:
"10. Before parting with this case, we think it necessary to make a few observations relevant to land acquisition proceedings. Our country is now launched upon an ambitious programme of all round economic advancement to make our economy competitive in the world marked. We are anxious to attract foreign direct investment to the maximum extent. We propose to compete with China economically. We which to attain the pace of progress achieved by some of the Asian countries referred to as "Asian Tigers" i.e. South Korea, Taiwan and Singapore. It is however, recognized on all hands that the infrastructure necessary for the sustaining such a pace of progress is woefully lacking in our country. The means of transportation, power and communications are in dire need of substantial improvement, expansion and modernization. These things very often call for acquisition of land and that too without any delay. It is however, natural that in most of these cases, the persons affected challenge the acquisition proceedings in Courts. These challenges are generally in the shape of writ petitions filed in High Courts. Invariably, stay of acquisitions is asked for and in some cases, orders by way of stay or injunction are also made. Whatever may have been the practices in the past, a time has come where the Courts should keep the larger public interest in mind while exercising their power of CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 68/74 granting stay/injunction. The power under Article 226 in discretionary. It will be exercised only in furtherance of interests of justice and not merely on making out of legal point. And in the matter of land acquisition for public purposes, the interests of justice and the public interest coalesce. They are very often once and the same. Even in a civil suit granting of injunction or other similar orders, more particularly on an interlocutory nature, is equally discretionary. The Courts have to weigh the public interest vis-a-vis the private interest while exercising the power under Article 226 - indeed any of their discretionary powers. It may even by open to the High Court to direct, in case it finds finally that the acquisition was vitiated on account of non- compliance with some legal requirement that the persons interested shall also be entitled to a particular amount of damages to be awarded as a lump sum or calculated at a certain percentage of compensation payable. There are many ways of affording appropriate relief and redressing a wrong; quashing the acquisition proceeding is not the only mode of redress. To wit, it is ultimately a mater of balancing the competing interests. Beyond this, it is neither possible nor advisable to say. We hope and trust that these considerations will be duly borne in mind by the courts while dealing with challenges to acquisitions proceedings."
CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 69/74 133 In the matter of Ananthula Sudhakar Vs P. Buchi Reddy ( 2008) 4 SCC 5944 it is held as under:-
134 To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:-
(a) Where a cloud is raised over the
plaintiff's title and he does not have
possession, a suit for declaration and
possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with the plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 70/74 regarding title ( either specific, or implied as noticed in Annaimuthu Thevar). Where the averments regarding title are absent in a plaint and where there is no issue relation to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.
CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 71/74 135 In the matter of Maria Margarida Sequeira Fernandes and others Vs. Erasmo Jack De Sequeira (Dead) through Lrs. ( 2012) 5 Supreme Court Cases 370 it is held as under:-
97. Principles of law which emerge in this case are crystallized as under:-
(1) No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property.
(2) Caretaker, watchman or servant can
never acquire interest in the property
irrespective of his long possession. The
caretaker or servant has to give possession forthwith on demand.
(3) The courts are not justified in protecting the possession of a caretaker, servant or any person, who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant. (4) The protection of the court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or licence agreement in his favour. (5) The caretaker or agent holds property of the principal only on behalf of the principal.
He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession.
136 Now applying the principle of perpetual injunction in the present case, plaintiff is not entitled for protection by way of CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 72/74 decree of perpetual injunction because he is unauthorized and illegal occupation of the suit land.
137 Relief In view of my finding on issue no. 1, 6 & 7 the suit of the plaintiff is dismissed.
138 Before parting with the suit, it is pertinent to mention here that deceased plaintiff and after his death is son Davinder Kumar Narula and now grand children are unauthorizedly in occupation of the precious government land without any legal right title or interest. It seems that government authorities also did not take diligent steps to vacate him due to the reasons best known to them. The plaintiff started the encroachment and unauthorized occupation to the extent of 10x10 sq ft and extended up to 726 or as per Ex. DW-1/5 extended 1305 sq ft and carrying on business of coal depot and building material store and selling. The deceased plaintiff throughout earned by unauthorized occupation and thereafter the same has been inherited by his son Davinder Kumar Narula and grand children for last three generations. In my considered opinion he is duty bound to now share the fruits from the profits and earning from unauthorized, illegal possession of the government land with the State, therefore, I imposed cost of Rs. 10 crores on the L.Rs of deceased plaintiff's which shall be deposited within six months with Prime Minister Relief Fund and shall be utilize for the families of farmers of Maharashtra and Madhya Pradesh, where the farmers have committed suicide or on the verge of committing suicide.
CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 73/74 139 Not only this the Union of India and DDA also both responsible for allowing the unauthorized occupation for about 70 years. There was no legal obstructions or hindrance or bar to from taking ejectment proceedings against the unauthorized occupant deceased plaintiff and his son throughout the seven decades but the officials due to the reasons best known to them did not take any legal and effective steps. They also failed to save the precious government land. Therefore, I imposed cost of Rs. 5 lacs on defendant no. 1, Union of India and Rs. 25 lacs on defendant no. 3, DDA, The Union of India and DDA, are directed to deposit their respective cost of Rs. 5 lacs and Rs. 25 lacs respectively with Prime Minister Relief Fund and shall be utilise for farmers of Maharashtra and Madhya Pradesh, where the farmers have committed suicide or on the verge of committing suicide.
140 Lastly, I direct concerned head of defendant no. 1 and Vice-Chairman, DDA of defendant no. 3 to conduct vigilance inquiry against, all the erring officials because of their negligence the government land remained in the unauthorized possession of deceased plaintiff and thereafter two generations who had ripen the fruit for about seven decades. Decree Sheet be prepared accordingly. File be consigned to record room.
(Announced in the open (SANJAY KUMAR)
court on 1st August, 2017 ADJ-02 (West)
Delhi
CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 74/74
CS No. 24/17/93 Harbans Lal Narula Vs Union of India & Ors 75/74