Delhi District Court
Sh. Giridhari vs ) The Lt. Governor Of Delhi on 17 April, 2013
IN THE COURT OF MS. ANJANI MAHAJAN, CIVIL JUDGE17
(CENTRAL) TIS HAZARI COURTS, DELHI
SUIT NO. 08/13
Unique ID No. 02401C1188252005
MEMO OF PARTIES
Sh. Giridhari
S/o Sh. Inder Mani
R/o A35, Ekta Vihar, Rani Khera,
Delhi110081
.............Plaintiff
VERSUS
1) The Lt. Governor of Delhi
Govt. of NCT of Delhi
Through its Secretary
Raj Niwas, Delhi 110054
2) The Vice Chairman
Delhi Development Authority
Vikas Sadan, New Delhi
3) The Secretary (LA)
Land & Building Authority
Vikas Bhawan, New Delhi
..........Defendants
Date of institution of the Suit: 21.12.2005
Date on which judgment was reserved: 28.03.2013
Date of announcement of Judgment: 17.04.2013
SUIT FOR PERMANENT AND MANDATORY INJUNCTION
Suit No. 08/13 Giridhari Vs. Lt. Governor 1/19
JUDGMENT
1. This judgment shall decide the suit of the plaintiff for permanent and mandatory injunction.
2. The case of the plaintiff is that the plaintiff purchased a plot bearing no. 35A, area measuring 50 sq. yds. out of Khasra No. 35/11, situated in revenue estate of village Rani Khera, Delhi Abadi known as Ekta Vihar, Delhi
- 81 (i.e. the suit property). Plaintiff states that he has been in peaceful enjoyment in possession of the suit property after construction of the house. Plaintiff states that the aforesaid property was purchased from its previous owner Smt. Padma, W/o Sh. Khem Chand through Agreement to Sell, Affidavit, Receipt and Possession Letter etc. executed by her on 01.07.1999. Plaintiff has a Ration Card of the same address bearing no. 143971 and Election I Cards in his own name and in the name of his wife Smt. Sanjukta. On 18.03.2004, vide notification no. F11 (21)/2004/L & B/LA/28043 published in the newspaper "The Times of India" New Delhi edition on 14.04.2004 Khasra no. 35/11 min (015) appeared to have been acquired by the Government of NCT of Delhi by the order of the Lieutenant Governor of Delhi notified U/s 4 of the Land Acquisition Act, 1894 and U/s 6 of the Land Acquisition Act, and vide notification no. F11 19/2001/L&B/LA/20112 dated 21.03.2003 it was clear that the Khasra No. 35/11 and 35/11 min were totally Suit No. 08/13 Giridhari Vs. Lt. Governor 2/19 different from each other. Further the plaintiff fearing acquisition of his property filed objections in the court of Land Acquisition Collector on 31.06.2005 which were pending ( on the date of filing of the suit). In the month of September, 2005, the officials of DDA (defendant no. 2) along with the police force came and demolished certain factory and residential properties in the area about 1,000 feet away from the house/property of the plaintiff.
3. It was averred that on 13.12.2005, at about 11.00 a.m. officials of defendant no. 2 along with police force came and demolished some residential and commercial properties which were about 20 feet away from house/property of the plaintiff but some of the officials indicated that the building of the plaintiff along with other adjacent buildings would also be demolished in future. The property of the plaintiff was situated within the extended Lal Dora, village Rani Khera, Delhi. It is contended that it is established policy of the Government of the N.C.T. Delhi and also the direction of the defendant no. 1 that houses/properties which have been built up to 90% and 100% have to be exempted from acquisition. The policy has been codified in the form of policy of non acquisition of built up areas relevant portion of the purported and office order has been reproduced in the plaint as follows "The above priorities are subject to the stipulations that the areas failing Suit No. 08/13 Giridhari Vs. Lt. Governor 3/19 within Lal Dora, built up area in the extended Lal Dora and area allotted under 20 point programme should not be acquired at all. Besides the area which are built up to the extent of 90% to 100% and/or the areas which are particularly built up but there is no vacant pocket bigger than one hectare available need not be acquired as they can not be put up to any effective use."
4. It is stated that Ekta Vihar colony was developed in the year 1988 and the name of this colony was in the list of regularization by the Government of NCT, Delhi and was pending approval of the Government of India, Ministry of Urban Development. Further, the Government of NCT, Delhi provides alternative plots for rehabilitation to landless, houseless persons and slum dwellers who build Jhuggi in Government lands unauthorizedly, in case their Jhuggies are required to be demolished. The plaintiff had purchased the suit property from his hard earned money and built up his house and had been residing along with family and children continuously ever since it was purchased. It was averred that in case the land on which the house of the plaintiff was built was required for the purpose of development for public good and demolition of the house was unavoidable the defendant should ensure alternative plot towards rehabilitation of the plaintiff. It is the plaintiff's case that the cause of action arose firstly on 18.03.2004 when notification was published in the newspaper 'The Times of India', Delhi edition dated Suit No. 08/13 Giridhari Vs. Lt. Governor 4/19 14.04.2004 and again when the plaintiff filed objections before the LAC. Further, it is stated to have arisen in September, 2005 when DDA officials came to the area and demolished the properties and threatened further demolition and again on 13.12.2005 when further demolition was carried out. It is submitted that the cause of action is continuous. Having no other efficacious remedy plaintiff filed the present suit, seeking firstly a decree of permanent injunction against the defendants, their agents, officials, authorities restraining them from demolishing the suit property as shown in the site plan and secondly a decree of mandatory injunction for directing the defendants to allot alternative plot to the plaintiff in case the property of the plaintiff is required to be demolished for the purpose of development in the larger interest of the public for his rehabilitation.
5. Defendants no. 1 and 3 filed a joint written statement. Preliminary objections were taken therein. It was stated that the suit was not maintainable. After the land was notified for acquisition, the state is entitled to take the possession of the land and public purpose got crystallized once the land was brought under notification U/s 6 of the LAC, 1894 and the power of the Civil Court to take cognizance U/s 9 CPC gets excluded. Plaintiff had no locus standi to file the present suit since he was not the recorded owner. The land in question was in an unauthorized area hence the construction was Suit No. 08/13 Giridhari Vs. Lt. Governor 5/19 illegal and plaintiff could not claim any legal right to raise any objection to the acquisition proceedings. The land in question was already within the acquired land and Land Acquisition Officer passed an award no. 08/05 - 06 (DC) (N W), vide order dated 28.06.2005. It is averred that the land can be acquired at any time U/s 16 of the Act after the award is passed. It was submitted that the 35/11 min is a portion of the Khasra No. 35/11 and the land in question fell under the Map of the notified area and had been acquired. The Land Acquisition Collector has passed an order U/s 11 of the Land Acquisition Act. It was stated that the land in question was an agricultural land and it was denied that the colony is in the list of regularization. It was averred that the award had already been passed and compensation had already been granted to the recorded owner of the land in question. It was prayed that the suit be dismissed with cost.
6. Defendant no. 2 also filed the written statement taking preliminary objections. It was stated that the suit was an abuse of the process of law. The land in dispute had already been acquired by LAC and plaintiff had not challenged the acquisition proceedings before the LAC therefore the proceedings had become final. This court had no jurisdiction to entertain the present suit and competent authorities were initiating proceedings for recovery of possession in respect of the acquired properties. It is stated that as per Suit No. 08/13 Giridhari Vs. Lt. Governor 6/19 Land Revenue Record of village Rani Khera, Khasra No. 35/11 Min, area measuring 015 (15 biswas) had been acquired vide award no. 08/200506 of Rohini Residential Scheme, PhaseIVV under PDD by LAC department however due to it being built up, physical possession of the land had not been handed over to DDA. Plaintiff had constructed his house unauthorizedly on the land in dispute. The house fell under high tension line of 11,000 KV which was dangerous to life.
7. On merits, the claim of the plaintiff was denied. It was averred that there was no policy and defendant no. 2 to allot or give alternative plots. Plaintiff had raised unauthorized construction upon acquired land and wanted to save himself from legal proceedings of the LAC. Plaintiff was an unauthorized encroacher of Government acquired land. It was thus prayed that the suit of the plaintiff be dismissed.
8. The plaintiff filed replications to the written statement of the defendants. In replication to the written statement of defendants no. 1 and 3, plaintiff denied the contentions raised by the defendants in the written statement. It was denied that the land in question was in unauthorized area whether the construction was illegal and unauthorized. It is also denied that the land in question was within the acquired land and Land Acquisition Officer had already passed an award dated 28.06.2005. It was denied that 35/11 min Suit No. 08/13 Giridhari Vs. Lt. Governor 7/19 was a portion of 35/11. Rest of contentions raised in the written statement were denied and those of the plaint were reiterated.
9. In replication to the written statement of defendant no. 2, plaintiff denied that he had not challenged the acquisition proceedings before the LAC. The contentions of the written statement were denied and those of the plaint reiterated.
10. Upon completion of the pleadings on 17.05.2007 the following issues were framed
1. Whether the suit of the plaintiff is barred under the provisions of Section 6 of the Land Acquisition Act, 1894? OPD
2. Whether the suit of the plaintiff is not maintainable for want of notice U/s 53B of DD Act? OPD
3. Whether the plaintiff is entitled for decree of mandatory injunction as prayed in the plaint? OPP
4. Whether the plaintiff entitled for decree of permanent injunction as prayed in the plaint? OPP
5. Relief.
11. In evidence, plaintiff in order to establish his case examined himself as PW1 and Sh. Dharambir Pardhan as PW2. Thereafter, defendants examined DW1 Sh. Surinder Kumar, Naib Tehsildar, Office of the Land Acquisition Suit No. 08/13 Giridhari Vs. Lt. Governor 8/19 Collector, District - NorthWest Kanjhawala and DW2 Sh. Naresh Kumar i.e. Patwari from DDA.
12. Final arguments were advanced by counsel for the parties. Counsel for plaintiff relied on 112 (2004) DLT 957. Counsel for defendants no. 1 and 3 referred to the judgment cited 122 (2005) DLT 586 while counsel for defendant no. 2 relied on citations i.e. 2008 (9) SCC 177 and 1994 (5) SCC 547.
13. I have heard the final arguments and perused the record and the relevant case law.
14. My issue wise findings are as follows Issue Nos. 1, 3 & 4 (1) Whether the suit of the plaintiff is barred under the provisions of Section 6 of the Land Acquisition Act, 1894? OPD, (3) Whether the plaintiff is entitled for decree of mandatory injunction as prayed in the plaint? OPP& (4) Whether the plaintiff entitled for decree of permanent injunction as prayed in the plaint? OPP
15. The claim of the plaintiff in the plaint is that the land acquired by the defendants i.e. khasra No. 35/11 (min) is different from khasra no. 35/11 where the house of the plaintiff was situated however fearing that defendants would acquire the plaintiff's house, the plaintiff filed the present suit seeking permanent injunction or in the alternative, alternative accommodation. In cross examination, PW 1 merely deposed that he had not read the content of any notification of acquisition of Khasra no. 35/11 min(015) and that he had filed Suit No. 08/13 Giridhari Vs. Lt. Governor 9/19 objections before the Land acquisition Collector for the protection of his land and further that the government officials who visited the site had told the plaintiff that his land had been acquired.
16. It was for the plaintiff to establish that khasra no. 35/11 & 35/11(min) (015) were different, or atleast that the property had not been notified for acquisition/was not the subject matter of the acquisition proceedings. The plaintiff as PW 1 relied on and exhibited the GPA in his favour as Ex PW 1/1, Agreement to Sell Ex. PW 1/2 Affidavit as Ex PW 1/3 receipt as Ex PW1/4 and possession letter as Ex. PW1/5. To prove his possession of the property in question, plaintiff relied on his Election I Card, Ex PW 1/6 (OSR) and Ration Card Ex. PW1/7 (OSR) Ex. PW1/1 mentions that the suit property falls in khasra no. 35/11 however the plaintiff's documents do not show that khasra no. 35/11 and khasra no. 35/11(min) are totally different as alleged by the plaintiff. The site plan exhibited as Ex. PW 1/6 also does not advance the case of the plaintiff, the site plan is shorn of necessary details and shows the solitary house of the plaintiff and infact does not even mention khasra number. Plaintiff also examined another witness PW2/ Sh. Dharambir Pradhan however his evidence is also not very useful for the plaintiff's case since even in his affidavit of evidence Ex. PW2/A, this witness does not depose that Khasra No. 35/11 & 35/11 (Min) are different & he deposes in cross Suit No. 08/13 Giridhari Vs. Lt. Governor 10/19 examination that he has not seen the title documents of the plaintiff.
17. In fact, to establish his case, plaintiff should have produced in evidence the Aks Sizra and demarcation report and it should have been proved through an appropriate witness that the portion of the plaintiff was different from the portion of the land acquired. It was the defendants 1 & 3 who produced and exhibited in evidence the Aks Sizra as Ex. DW 1/3 through DW 1/ Sh. Surender Kumar, Naib Tehsildar from the office of the Land Acquisition Collector. Though it was elicited from this witness (DW 1) in crossexamination that in the Award Ex. DW 1/1 only khasra no. 35/11 min comprising 15 biswas land had been mentioned as having been acquired, however interestingly inspite of the fact that the witness identified the acquired land khasra no. 35/11 min on the aks sizra Ex. DW 1/3 no question or even suggestion in regard to the location of the property of the plaintiff being different or separate from that of 35/11 or the acquired land was put to this witness. The aks sizra Ex DW 1/3 was not disputed by the plaintiff. It was maintained by all Counsel for the defendants that khasra no. 35/11 min was merely a part of khasra no. 35/11, the two were not different and the suit property fell within the portion acquired. DW 2/ Sh Naresh Kumar, Patwari from DDA was asked by the Ld counsel for the plaintiff as to what was the difference between khasra no. 35/11 to which the witness answered that min meant piece of land and khasra Suit No. 08/13 Giridhari Vs. Lt. Governor 11/19 no. 35/11 min comprised 15 biswas land and further in response to the question as to whether khasra no. 35/11 had been acquired as Ex PW 1/1, DW 2 testified that out of khasra no. 35/11, biswas of land had been acquired, thus maintaining the stand of the defendants that khasra no. 35/11 min was only a part of khasra no. 35/11. The plaintiff admitted to filing the petition under section 9 and 10 of the Land Acquisition Act before the Land Acquisition Collector through a lawyer, apparently for protecting his land. Now, it is mentioned by the plaintiff in the plaint itself that plaintiff filed objections in the court of the Land Acquisition Collector fearing the acquisition of his house property. Plaintiff never brought a copy of the objection petition as filed in this court nor mentioned the fate of the same. It was correctly argued by counsel for defendants that if the property did not fall within the acquired land, plaintiff would not have filed the petition before the LAC.
18. In a recent judgment i.e. Commissioner, Bangalore Development Authority Vs. Brijesh Reddy & Anr. Civil Appeal No. 1051/2013 decided on 08.02.2013, wherein also the plaintiff's had approached the civil court seeking permanent injunction restraining the authority from interfering in the peaceful possession of the property & there was no challenge to the acquisition proceedings, it was held by the Hon'ble Supreme Court that in view of the assertion of the authority in its written statement about the Suit No. 08/13 Giridhari Vs. Lt. Governor 12/19 initiation of acquisition proceedings ending with passing of award, handing over possession & subsequent action, the suit was not maintainable. It must be mentioned here that in the above case it was noted that the plaintiff therein had stated in the plaint that the the suit land had been acquired & the same had been purchased by the plaintiff after the acquisition proceedings had been completed and in the case at hand, the plaintiff allegedly purchased the suit property prior to the notification of acquisition however the plaintiff has miserably failed to establish that Khasra No. 35/11 & Khasra No. 35/11 Min are different and that the suit land is not acquired and secondly, the plaintiff has failed to establish that he has any right, title or interest in the suit property. Once plaintiff fails to establish that Khasra No. 35/11 & 35/11 Min are different & that the suit property falls outside of the land acquired any injunction in regard to the said land against the authorities restraining them from taking possession of the suit property would be clearly barred under the Land Acquisition Act. Through the present suit the plaintiff is obliquely trying to challenge the acquisition proceedings, which is clearly barred under the Land Acquisition Act. Admittedly, the plaintiff is in physical possession of the property, however after the passing of the award, it is only the DDA which has right over the suit property & for any grievance regarding compensation the plaintiff was required to avail of the appropriate statutory Suit No. 08/13 Giridhari Vs. Lt. Governor 13/19 remedies, and not through the present suit.
19. In the judgment afore quoted, the Hon'ble Apex Court held as follows " It is clear that the the Land Acquisition Act is a complete Code in itself & is meant to serve public purpose by necessary implication, the power of Civil Court to take cognizance of the case U/s 9 of the CPC stands excluded and a Civil Court has no jurisdiction to go into the question of the validity or legality of the notification U/s 4, declaration U/s 6 & subsequent proceedings except by the Hon'ble High Court in a proceeding under article 226 of the constitution. It is thus clear that the Civil Court is devoid of jurisdiction to give declaration or even bare injunction being granted on the invalidity of the procedure contemplated under the Act. The only right available for the aggrieved person is to approach the High Court under article 226 or this Court under article 136 with self imposed restrictions on their exercise of extraordinary powers."
19. Reliance placed by the Ld. counsel for the plaintiff on Dayanand (Shri) & Ors. Vs. UOI 112 (2004) DLT 957 is misplaced and the same is inapplicable to the present case since therein in writ proceedings petitioners had challenged notifications U/s 4 & 6 of the Land Acquisition Act, 1894 since they were in possession and the colony was an unauthorized colony, for regularization of which decision had been taken. In fact the challenge on Suit No. 08/13 Giridhari Vs. Lt. Governor 14/19 the ground of pendency of regularization of the unauthorized colony had been rejected and petitioners had been directed to approach the Competent Authority U/ 48 of the Act for denotification and only pending the decision possession of petitioners were directed not to be disturbed.
20. Thus, in view of the above discussion I hold that the suit of the plaintiff is barred under the the Land Acquisition Act r/w Section 9 of the CPC.
21. Even otherwise, the claim of injunction, permanent or mandatory is only maintainable if a plaintiff establishes his right to the relief claimed & infringement/ threat of infringement to that right. The plaintiff bases his claim on GPA, Agreement to Sell, Possession Letter etc. There is no sale deed in favour of the plaintiff. It is well settled that GPA, Agreement to Sell etc. do not confer title on a person and as such, plaintiff has not produced the chain of title documents to corroborate his claim that he purchased the suit property from the recorded owners. No records have been produced to show that Smt. Padma was the recorded owner of the suit property. The defendants exhibited the Khatauni Ex. DW1/2 which shows the names of the Khatedars with respect to Khasra no. 35/11 [4 bighsas 16 biswas] to be Sh. Chandan Singh, Ratan Singh, Balwant Singh & Ram Singh.
22. Plaintiff has not produced any previous chain of documents. Plaintiff has not established title to the suit property & must be held to be unauthorized Suit No. 08/13 Giridhari Vs. Lt. Governor 15/19 occupant of the suit land.
23. As already noted, the Khatedars shown for the Khasra 35/11 (admeasuring 4 Bighas 16 biswas) are Sh. Chandan Singh, Ratan Singh, Balwant Singh & Ram Singh and not the plaintiff or even Smt. Padma from whom plaintiff alleges to have brought the suit plot. The plaintiff's case must stand on its own legs, plaintiff does not possess any sale deed nor does the name of the plaintiff figure in the revenue records. As already observed, plaintiff has failed to prove that 35/11 is different from 35/11 min, in fact 35/11 min is only a part of 35/11 for which compensation has already been granted to the recorded Khatedars as per Ex. DW1/1. The plaintiff admittedly preferred objections before the LAC. It is clear that the suit land falls within the acquired land. After passing of the award DDA is the owner of Khasra No. 35/11 (Min) (15 Biswas) and plaintiff who is only an encroacher/unauthorized occupant thereon & is not entitled to the relief of injunction against the DDA i.e. the true owner (See Premji Ratansey Shah Vs. Union of India (1994) 5 SCC 547). The mandatory injunction sought is also not maintainable since the Land Acquisition Act provides for a specific provision of compensation to interested persons and mechanism of re dressal of grievances in regard to apportionment of the award or the compensation is also provided for in Act the therefore the relief claimed is Suit No. 08/13 Giridhari Vs. Lt. Governor 16/19 barred under the Land Acquisition Act is also barred Section 41(h) of the Specific Relief Act since the equally efficacious remedy was of approaching the appropriate authority/ Court regarding the grievance of apportionment/grant of compensation.
24. Thus, in view of the aforesaid discussions, issues 1, 3 & 4 are decided against the plaintiff.
Issue No. 2. Whether the suit of the plaintiff is not maintainable for want of notice U/s 53B of DD Act? OPD
25. I note that the defendant no. 2 has not taken the objection of statutory notice U/s 53B of the Delhi Development Act in the written statement and has contested the suit on merits throughout. In addition, the plaintiff's suit is one for grant of injunctions and though Section 53B (1) provides for notice to be served of suits against the DDA & its officials however Section 53B (3) provides an exception where the only relief claimed is an injunction of which the object would be defeated by giving notice or postponing the institution of the suit. The suit having been contested on merits & the plaintiff's suit being one for injunctions only apart from the fact that defendant impliedly waived the statutory notice by not raising any objection on that ground, I hold that the suit is not barred U/s 53B of DD Act for want of notice. Issue decided in favour of the plaintiff. Issue No. 5. Relief
26. In view of the discussion of issues 1, 3 & 4 above, I hold that that the Suit No. 08/13 Giridhari Vs. Lt. Governor 17/19 plaintiff is not entitled to the reliefs claimed. Suit of the plaintiff is dismissed. Parties to bear their own costs.
Decree sheet be prepared accordingly.
File be consigned to the Record Room.
Announced in the open court ANJANI MAHAJAN
On 17.04.2013 Civil Judge - 17 (Central)
17.04.2013
Suit No. 08/13 Giridhari Vs. Lt. Governor 18/19
17.04.2013 Suit No. 08/13
Present: None.
Vide separate judgment, the suit of the plaintiff is dismissed. Parties to bear their own costs.
Decree sheet be prepared accordingly.
File be consigned to the Record Room.
ANJANI MAHAJAN
Civil Judge 17 (Central)/THC
Delhi/17.04.2013
Suit No. 08/13 Giridhari Vs. Lt. Governor 19/19