Delhi District Court
Smt. Hemwati vs The Commissioner on 22 July, 2014
IN THE COURT OF SHRI A.S. JAYACHANDRA: ADDITIONAL
DISTRICT JUDGE-I: SHAHDARA DISTRICT: KARKARDOOMA
COURTS: DELHI.
RCA No. 96/2013
Unique I.D No. 02402C0321112011
Smt. Hemwati
S/o late Shri Chander Bhan,
R/o H. No. 1/10721,
Subhash Park, Gali No. 2,
Shadardra, Delhi. ............... Appellant
Versus
1. The Commissioner, MCD
Town Hall, Chandni Chowk,
Delhi.
2. The Dy. Commissioner
MCD, Shahdara, North Zone,
Keshav Chowk, Delhi.
3. The Delhi Administration
Through Chief Secretary
of Delhi, NCT of Delhi,
New Delhi.
4. The Dy. Director,
Slum & J.J. Department,
Near ITO, New Delhi. ......... Respondents
Date of Institution : 21.10.2011
Order reserved on : 15.07.2014
Order passed on : 22.07.2014
JUDGMENT
1. The unsuccessful plaintiff in the trial court, challenges the judgment and decree in suit no. 784/2009 dated 08.09.2011 on the files of Ld. CCJ/ARC (N/E), Karkardooma Courts, Delhi dismissing her suit for perpetual injunction and mandatory injunctions. The RCA No. 96/2013 Hemwati Vs. The Delhi Administration & Ors. Page1/11 mandatory injunction is to allot her an alternate shop in lieu of the plot bearing no. 18A acquired by the government. The perpetual injunction is also for directing the defendants to immediately allot alternate shop.
2. Case of the plaintiff in the trial court: Plaintiff contends that she is widow and that she purchased a shop bearing no. 18A measuring 7x10 ft. in front of Radhu Cinema, Sabzi Mandi, Shahdara on 20.10.1982 from her vendor Hajarilal. She was selling the cold drinks from the said shop. The same was acquired by the Delhi Government for Mass Rapid Transport System. During the acquisition her shop along with others were demolished and the possession was taken over by the Government. Since then the plaintiff is sitting idle. She pleads that she has been running from pillar to post for alternate shop. Similarly displaced persons were given alternate shops. When the government acquired, it has assigned the duty of allotting alternate shops to the MCD. Plaintiff served a legal notice on 22.07.2005 and then she filed the present suit ( as per the amended plaint, which amendment was allowed by the trial court on 25.10.2007).
3. Case of the defendant-MCD ( D1 & 2): These defendants contended that suit is not maintainable for want of statutory notice under the DMC Act. Plaintiff is not a Tehbazari holder and not paying any fee to the MCD. No license was issued by them to the RCA No. 96/2013 Hemwati Vs. The Delhi Administration & Ors. Page2/11 plaintiff by the health department. No site plan was filed. No trade license was issued. No removal of encroachment action was taken by the MCD. The acquisition alleged is to be answered by the state government. The plaintiff is not entitled for any injunctions.
4. The Defendant no.3 in the trial court namely the Delhi Administration has not filed any written statement. Initially the suit was filed against D1 & 2 only. The amended plaint shows that later the Delhi Administration and the Department of Slum and J.J. Department of the MCD were impleaded. The defendant no.3 was served as noted on 11.07.2008.
5. Case of defendant no.4: D-4 has filed a separate W.S. contending that there is no cause of action and the suit is not maintainable for want of statutory notice. The plaintiff was allotted with a shop plot bearing no. 46 measuring 10 sq. meters at Punarawas Bazar, Nand Nagari, Delhi by allotment letter dated 11.11.2002. The other allegations are denied since the plaintiff was given alternate shop. No other reliefs are maintainable. They have sought for dismissal of the suit.
6. Issues before the trial court: After perusal of the pleadings, the ld. court below had framed the following issues on 22.01.2009:
1. Whether this suit is barred by limitation.? OPD
2. Whether the defendant served with notice as required under U/s 477/478 of the DMC Act? OPP RCA No. 96/2013 Hemwati Vs. The Delhi Administration & Ors. Page3/11
3. Whether plaintiff is entitled for relief as claimed? OPP
4. Relief.
7. To vindicate the respective claims, the plaintiff has examined four witnesses and the defendants have examined one witness.
The arguments were heard. The ld. court below after considering the evidence available on record did hold that the suit is not barred under limitation and plaintiff has not proved the service of legal notice. However the court came to the conclusion that the plaintiff is not the owner of shop no. 18A acquired and she cannot be allotted two shops, since the policy of the government permits allotment of one shop to single person. Thus, it dismissed the suit.
8. Grounds in the appeal: The impugned judgment and decree is assailed on several grounds contending that the same is based on surmises and conjectures, non appreciation of oral and documentary evidence. The service of legal notice having been proved by the documentary evidence which overshadows the denial by the plaintiff who is an illiterate lady. It is also contended that the evidence was not appreciated. The appellant having lost her source of livelihood is entitled for alternate shop. There was illegal demolition and she ought to have been allotted with an alternate shop. It is also contended that she was in peaceful possession since the date of purchase. Though, it was contended by the defendants that appellant was given compensation, no compensation was ever received by the appellant. The policy of RCA No. 96/2013 Hemwati Vs. The Delhi Administration & Ors. Page4/11 allotment is not placed before the trial court. The ownership of plot no. 18 A was proved by GPA which was ignored.
9. The respondents were issued with notices. The trial court records are secured. Heard the arguments of the counsel appearing for the respondents except R-3. After careful perusal of the trial court record and the submissions made at the bar, the only issue that arises for consideration before this court is "whether the impugned judgment and decree of the court below is perverse, opposed to law and is passed without application of mind or not?"
10. After careful perusal of the trial court records and keeping in mind the submissions made, the issue arising in this appeal is being answered with the following reasons.
Reasons A. There are no arguments with regard to the suit being not barred by limitation. Thus, the findings of the court below is not attacked on issue no.1 as framed by the trial court. B. As regards the issue no.2, the court below has observed while answering issue no.2 that the defendants have not specifically denied the legal notice. It noted " though PW-1 had relied upon the legal notice at Ex. PW1/4 which was sent to Ex.PW1/3 and 4, in the examination in chief, yet the PW-1 during the cross examination has denied that she ever sent any legal notice regarding the suit property to the defendants. This deposition itself prove that the RCA No. 96/2013 Hemwati Vs. The Delhi Administration & Ors. Page5/11 legal notice was not sent by the plaintiff".
C. The trial court records are perused. Ex. PW1/2 is the copy of legal notice sent under Section 478 of DMC Act. The same is sent by RPAD. Therefore, the documentary evidence outweighs the oral testimony of PW-1. Therefore, ignoring documentary evidence to hold that there was no legal notice is not in the right perspective. Thus, the findings of the trial court is on issue no.2 stands answered in favour of the plaintiff in the trial and against the defendants. D. This court is now to consider the grounds of appeal for adjudicating the legality of the findings on the issue no.3 framed by the trial court in the juxtaposition of the evidence available on record. The plaintiff had contended that she was the owner of shop no. 18-A having purchased the same from one Hazarilal for consideration. She has also given the date as 22.10.1982 and was running the shop of cold drinks which was acquired. She contends that the same was acquired. During the course of her examination in chief, she has produced certain documents at Ex. PW1/1 to Ex. PW1/4. Ex. PW1/1 is the document to show the purchase of the shop from Hazarilal. The marking of the said document was objected with regard to the mode of proof and also of the admissibility as regards the stamp duty. Perused the Ex. PW1/1. This is a general power of attorney written on stamp of Rs. 10/-. The ld. court below had noted that mode of proof of RCA No. 96/2013 Hemwati Vs. The Delhi Administration & Ors. Page6/11 admissibility would be decided at the time of final arguments. However from the reading of the judgment, the same was not decided. The ld. court only held the the GPA is not a document of title. The ld. court below relying on the rulings of G. Ram Vs. DDA AIR 2003 Delhi 120, M.L. Aggarwal Vs. OBC, 128 (2008) DLT 407 and Suraj Lamp Industries Vs. State of Haryana AIR 2009 SC 3077 came to the conclusion that the GPA cannot be treated as a title.
E. The aspect of admissibility of this document was questioned by the defendant in the trial court that the same was not decided. The article 48 (f) of Schedule-I to the Indian Stamp Act, 1899 prescribed the stamp duty as applicable to conveyance for the amount of consideration. After going through the contents of the Ex. PW1/1, the executant had given all the powers including the power of sale. The amount of consideration is not mentioned anywhere. Therefore what stamp duty is applicable is not forthcoming. The ld. counsel for the respondent has also not seriously disputed the admissibility in the appeal. Therefore, the document is taken at the face value.
F. The ld. counsel for the appellants have vehemently argued that they are eligible for allotment of two shops since the two shops the appellant were acquired at serial numbers 65 and 67 of the award. Perused the award Ex. PW3/A. This is a copy of the award RCA No. 96/2013 Hemwati Vs. The Delhi Administration & Ors. Page7/11 showing the amount claimed and valuation assessed. It is seen from the award that Hemwati ( appellant) was also the owner of shop no.18 and amount claimed by the appellant is Rs. 50,000/- per sq yard + Rs. 5 lakh+ interest. Valuation assessed under the award is Rs. 4,604/- only. Likewise at Sr. no. 67-the shop no. 18A for which the appellant is the claimant ( the shop under litigation) had not applied for any claim but the assessed value by the award is Rs. 13,737/- only. Ex. PW2/D2 shows that the J.J. Department vide its letter dated 11.11.2002, had intimated the appellant regarding the allotment of shop no. 46 measuring 10 sq meters at Punarawas Bazar, Near Gagan Cinema. This letter shows that there was a draw held and she was allotted shop no. 46 and the demand letter was sent to her to pay certain amount. The shop allotted to her is not clear as to from which shop in lieu thereof, the same was allotted. The parties are also not clear in this regard. G. The ld. counsel for the appellant submits that the appellant has right to seek alternate allotment of a shop. The respondent no. 4 who filed the written statement answering the claim of the allotment of alternate shops, had made it clear that shop no. 46 was allotted and that the plaintiff is not entitled to claim any other plot/shop.
H. It is common prudence under law that in order to maintain the relief of mandatory injunction against the statutory authorities, RCA No. 96/2013 Hemwati Vs. The Delhi Administration & Ors. Page8/11 a person claiming such injunctions has to show the vested right in him. In this case the plaintiff has not shown any provision of law by which she is entitled for the alternate shop in lieu of acquired shop bearing no. 18A. Her grievance is that no compensation was given to her. The award shows that no claim was put up by her before the Land Acquisition Officer. Yet the Land Acquisition Collector has assessed the valuation at Rs. 13,737/- pertaining to shop no. 18A. The non payment of the compensation is a different matter and in lieu of non payment demanding the allotment of a shop is not found to be based on any vested right conferred under law. Though it was argued on behalf of the defendants that there is a policy to allot a single shop through a single individual displaced, the respondents have not produced any such policy. However, it is to be noted that unless a party seeking mandatory injunction establishes a right to seek the mandatory injunction, no court would grant such mandatory injunction.
I. Further more, the basis on which the appellant founded her title is only a GPA which cannot be equated as a title as rightly held by the ld. court below. There is no illegality in holding that the appellant was not the title holder to maintain the relief of mandatory injunction based on a mere GPA.
J. A mandatory injunction is granted only in rare cases and normally a mandatory injunction is granted, if at all, only to restore RCA No. 96/2013 Hemwati Vs. The Delhi Administration & Ors. Page9/11 the status quo and not to establish a new state of things differing from the states which existed at the date when the suit was instituted.
Section 39 of the Specific Relief Act 1963:- Speaks that " S 39. Mandatory Injunction- When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the Court is capable of enforcing, the Court may in its discretion grant an injunction to prevent the breach complained of, any also to compel performance of the requisite acts."
In the instant case, no breach of an obligation on the part of defendants is made out. The plaintiff is unable to establish any right to demand the alternate shop. She is already allotted with the shop. ( though it is not clear as to which of the two shops or to both the shops the alternate was given.) The grant of mandatory injunction being a matter of discretion, the same could not have been granted by the ld. trial court in the peculiar circumstances of the case.
11. For the above said reasons, though the suit filed by the plaintiff in the trial court is held to be maintainable concerning the compliance of DMC Act and the limitation, this court is constrained to hold that the plaintiff in the trial court has not made out a case for grant of the mandatory injunction as prayed for in seeking the allotment of alternate shop, in lieu of the acquired shop no. 18A. RCA No. 96/2013 Hemwati Vs. The Delhi Administration & Ors. Page10/11 Excepting the above, this court does not seek any illegality or perversity in the conclusion reached by the trial court on issue no.3 on its files. Consequently, I pass the following order:
ORDER The appeal stands dismissed.
The judgment and decree in suit no. 784/2009 dated 08.09.2011 on the files of Ld. CCJ/ARC (N/E), Karkardooma Courts, Delhi is hereby affirmed.
There shall be no order as to costs. Decree be prepared accordingly. TCR be sent back alongwith a copy of this judgment. File be consigned to Record Room.
Pronounced in the open court ( A.S. JAYACHANDRA) 22.07.2014 Addl. District Judge:
Shahdara District:
KKD Courts Complex:Delhi RCA No. 96/2013 Hemwati Vs. The Delhi Administration & Ors. Page11/11