Delhi District Court
Manvir Sharma vs Delhi Development Authority on 28 January, 2011
Suit No.1091/2006
IN THE COURT OF MS. SHEFALI SHARMA:
CIVIL JUDGE (WEST): TIS HAZARI COURTS: DELHI
Suit No. 1091/2006
1.Manvir Sharma s/o late Sh. Shyam Lal Sharma.
2. Smt. Kamlesh Sharma W/o Sh. Manvir Sharma Both Residents of:-
H. No. 1751, Shastri Nagar, Delhi-110052.
.....Plaintiffs Versus Delhi Development Authority through its Vice Chairman Vikas Sadan, near INA Market New Delhi.
....Defendant
Date of Institution : 05.04.2002
Date of Reservation : 19.01.2011
Date of Decision : 28.01.2011
Judgment:-
This is a suit for Perpetual Injunction filed by the Plaintiffs against the Defendant. The facts in brief as averred in the plaint are:
1. That the Plaintiffs are the co-owners of the land measuring about 4.1/2 bigha out of khasra no.58/21 situated in Village Pooth Kalan, Delhi. That in view of the order passed by Hon'ble Supreme Court of India dated 03.12.1985, DDA was not to carry Manvir Sharma & Ors. Vs. DDA 1/8 Suit No.1091/2006 out demolition proceedings against various properties including the property of the plaintiff bearing khasra no. 58/21 without due process of law. It is the case of the plaintiff that the officials of defendant/ DDA were trying to built a park for public use on the land of the plaintiff and had also brought building material on the site. On 02.04.2002, the officials of defendant/ DDA allegedly threatened the plaintiffs that they shall construct a footpath along with the boundary of the said plot. It is the case of the plaintiffs that they are the lawful owner and in possession of the suit property and that the construction work being carried by the defendant/DDA is illegal. Hence the present suit.
2. Defendant/ DDA has contested the present by filing the written statement stating that the disputed land forms part of khasra no.58/21/1 (0-6) and 58/21/2 (4-10) of Village Pooth Kalan and the same had been acquired vide award no.20/85-86. After the acquisition, the physical possession of land was taken over on 13.11.1985 and for the purpose of development of the land, the same was placed at the disposal of defendant/ DDA by virtue of notification no.F.10(15)/78 L&B dated 10.04.1986 issued under Section 22(1) of DD Act. Defendant/ DDA in the written statement have also denied the right, title or interest of the plaintiff over the suit land stating that he is not the owner of the suit land.
3. The plaintiff filed his replication to the written statement of defendant wherein the plaintiff reiterated and reaffirmed the contents of the plaint and denied the averments made by the defendant/ DDA in its written statement.
4. On the basis of the pleadings, following issues were framed by my Ld. Predecessor on 24.03.2006 which are as follows:
Manvir Sharma & Ors. Vs. DDA 2/8 Suit No.1091/2006
(i) Whether the plaintiff is entitled to relief for permanent injunction as prayed for?
OPP.
(ii) Whether the suit of the plaintiff is not maintainable for want of notice under Section 53-B of DD Act, 1957? OPD.
(iii) Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD.
(iv) Whether the suit land was acquired vide award no.20/85-86 and after acquisition the physical possession of land was taken over on 13.11.1985? OPD.
(v) Relief.
5. Plaintiff produced one witness i.e. the Plaintiff himself as PW-1 vide his affidavit Ex. PW-1/A reiterated the contents of the plaint. PW-1 relied upon the documents Ex. PW-1/1 which is a site plan and a photocopy of the GPA, Agreement to sell, affidavit, Will etc. as Mark-A (colly.)
6. Defendant examined only one witness i.e. Sh. Surender Singh Saini, Patwari, Lands Management Department, Rohini Zone, DDA as DW-1 who vide his affidavit Ex. DW-1/X reiterated the contents of the Written Statement and categorically stated in his cross-examination that there is already a park which has been constructed on the suit property by the defendant/ DDA since the land stands acquired by the LAC department and the possession of the same has handed over to DDA since 13.11.1985. He has also relied upon documents Ex. DW-1/1 to DW-1/5. Ex. DW-1/1 is the copy of the part of aks sijra showing the suit land, Ex.DW1/2 is the copy of the award, Ex.DW1/3 are the possession proceedings, Ex.PW1/4 is the notification under Section 22(1) DD Act and Ex.DW1/5 is the rough location plan showing the exact location of the suit property.
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7. My issue wise findings are as follows:
Issue no. 1:- Whether the plaintiff is entitled to relief for permanent injunction as prayed for? OPP.
Issue no. 4:- Whether the suit land was acquired vide award no.20/85-86 and after acquisition the physical possession of land was taken over on 13.11.1985? OPD.
These issues are taken up today as they are inter-connected with each other.
The onus to prove that the suit land has been acquired and the possession of the same has been taken over by the defendant, was upon the defendant/ DDA. Defendant has categorically proved vide Ex.DW1/2 which is the copy of the award, Ex.DW1/3 the possession proceedings and Ex.PW1/4 which is the notification under Section 22(1) DD Act that the land had been acquired and placed at the disposal of defendant/ DDA for the purpose of development who had taken over the physical possession of the same on 13.11.1985. This is further corroborated with testimony of DW1 who has categorically stated that there is already a park which has been constructed on the suit property by the defendant/ DDA since the land stands acquired by the LAC department and the possession of the same was handed over to DDA since 13.11.1985.
On the other hand, not an iota of evidence has been led on behalf of plaintiffs to show that they are the owners and in possession of the suit property. The only documents filed to show the ownership are photocopies of GPA, Agreement to sell, Affidavit, Will, Receipt dated 05.02.1992 which are marked as Mark-A. The Same cannot be relied upon firstly, since they are mere photocopies and the authenticity of the documents is under cloud. Secondly, it is settled law that merely by execution of Power of Attorney, Agreement to Sell, etc, the right, title or interest of an immovable property Manvir Sharma & Ors. Vs. DDA 4/8 Suit No.1091/2006 cannot be transferred and the sale of immovable property by registered deed. For this I place reliance on "G.Ram Vs. DDA", AIR 2003 Delhi 120 passed by Hon'ble High Court wherein it is held that an agreement of sale is not a document of transfer not by reason of execution of a power of attorney, the right, title or interest of an immovable property can be transferred. Such a transfer can only be effected by executing a registered document as provided for under Section 54 of the Transfer of Property Act read with Section 17 of the Indian Registration Act.
A similar view has been taken by Hon'ble High Court in "M.L. Aggarwal vs. Oriental Bank of Commerce & Ors" 128(2006) Delhi Law Times 407(DB) wherein it was held that the petitioner had only produced an Agreement to Sell, Will and a Power of Attorney and a receipt for payment of money but these, in our opinion, do not constitute a sale. Under Section 17(1)(b) of the Registration Act, sale of an immovable property can only be by a registered deed. In our opinion, the petitioner has no right, title or interest in the property as he has not purchased it by any registered Sale Deed. An immovable property cannot be purchased by a mere Power of Attorney or Agreement to sell.
The Division Benches of Hon'ble High Court of Delhi in the abovesaid judgments clearly enunciate that on the mere execution of General Power of Attorney and Agreement to sell, the right, title or interest qua immovable property are not conferred.
Thus the plaintiffs have failed to show that they have any legal right over the suit property which is the most essential requirement for seeking a relief of injunction.
Manvir Sharma & Ors. Vs. DDA 5/8 Suit No.1091/2006 Further, it has been vehemently argued by the Ld. Counsel for plaintiffs that in view of the orders passed by Hon'ble Supreme Court dated 03.12.1985 in the case of "Krishan Vihar Welfare Society Vs. UOI & Ors", Civil Miscellaneous Petition No.46103 of 1985 in Civil Writ Petition no.12796/1985 wherein it was held that demolition of construction in village Pooth Kalan of land bearing khasra nos. 58/21 (4-
16) i.e. suit property and various other khasras as mentioned therein shall not take place otherwise than in due course of law. It is submitted by Ld. Counsel for plaintiff that in view of the order of Hon'ble Supreme Court, the officials of defendant/ DDA shall be restrained from carrying out any demolition of property or construction of the park on the suit land.
I have carefully gone through the above judgment passed by Hon'ble Supreme Court. It categorically states that demolition of construction in village Pooth Kalan of land bearing khasra nos. 58/21 (4-16) i.e. suit property and various other khasras as mentioned therein shall not take place otherwise than in due course of law. The moot point of consideration here is what is "due course of law". The perusal of the provisions of the Land Acquisition Act clearly shows that due opportunity of being heard is given to a person to object to such proceedings if his interest is being affected.
Section 5-A provides for hearing of objection of any person in any land which has been notified under Section 4 of the Act.
Section 6 provides for declaration that land is required for a public purpose.
Further Section 9 provides notice to persons interested. It contemplates a public notice to be given at convenient places on or near the land to be taken stating that Manvir Sharma & Ors. Vs. DDA 6/8 Suit No.1091/2006 the Government intends to take possession of the land and that claims to compensation for all interests in such land may be made to the collector.
As is mentioned above the defendant has duly proved vide Ex. DW-1/1 to DW-1/5 that the land stands acquired by the LAC department and the possession of the same was handed over to DDA since 13.11.1985.
Thus, it cannot be said that the due process of law was not followed by the defendant/ DDA before carrying out the demolition proceedings.
Further in order to seek any relief of perpetual injunction, firstly, the plaintiff has to satisfy the court that a prima facie case is made out in his favour. In view of the above discussions and the law laid down in G.Ram Vs. Delhi Development Authority and M.L. Aggarwal Vs. Oriental Bank of Commerce and Others, the plaintiffs have failed that they have any legal right over the suit property. Accordingly, Issue no. 4 is decided in favour of defendant/ DDA and issue no.1 is decided against the plaintiff. Issue no.2:- Whether the suit of the plaintiff is not maintainable for want of notice under Section 53-B of DD Act, 1957? OPD.
The onus to prove this issue was on defendant. However, no substantial evidence has been led on behalf of defendant to show that suit is bad for want of notice under Section 53-B of DD Act.
After analysis of provisions of Section 53-B, it is clear as per clause (3) of the section in a case of injunction, the mandate of statutory notice is not applicable. Thus, this issue is decided in favour of the plaintiff and against the defendant.
Manvir Sharma & Ors. Vs. DDA 7/8 Suit No.1091/2006 Issue no.3:-Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD.
The onus to prove this issue was upon the defendant. However, defendant failed to lead any evidence in this regard. Even in the written statement, there is a bald assertion which is made that the suit is not been properly valued for the purposes of court fees and jurisdiction however, deficiency if any, the court fees has not been brought forth nor any substantive evidence has been led or arguments done in this regard. Accordingly, this issue is decided against the defendant and in favour of plaintiffs. Relief In view of my findings in issues no. 1 and 4, the suit of the plaintiff is dismissed. No order as to cost. Decree sheet be prepared accordingly. File be consigned to record room.
Pronounced in the open court today on 28.01.2011 (SHEFALI SHARMA) Civil Judge (West) THC, Delhi /28.01.2011 Manvir Sharma & Ors. Vs. DDA 8/8