Delhi District Court
Mahesh Kumar vs Delhi Development Authority on 27 September, 2023
DLSE010111872021
Presented on : 10-12-2021
Registered on : 14-12-2021
Decided on : 27-09-2023
Duration : 1 years, 9 months, 17 days
Date of Institution : 14.12.2021
Date reserved for judgement : 16.09.2023
Date of announcement of judgement : 27.09.2023
Decision : Appeal Dismissed
IN THE COURT OF SHRI MUNISH MARKAN
ADDITIONAL DISTRICT JUDGE (ADJ02) SOUTH EAST,
DISTRICT COURTS, SAKET, NEW DELHI
MCA DJ 22/21
MAHESH KUMAR
also known as Leelu
s/o Sh. Basant Kumar
R/o : H1/2, Harkesh Nagar,
New Delhi - 110020. .... Appellant/Plaintiff
VERSUS
1. DELHI DEVELOPMENT AUTHORITY
Through its Vice Chairman,
Vikas Sadan, I.N.A,
New Delhi110023.
2. SOUTH DELHI MUNICIPAL CORPORATION
Through its Commissioner,
Civic Centre, Minto Road,
New Delhi110002. .... Respondents/Defendants
MCA DJ 22/21 MAHESH KUMAR VS. DELHI DEVELOPMENT AUTHORITY 1/ 11
JUDGMENT:
1. The appellant/ plaintiff has impugned the order dated 01.11.2021 passed by the Ld. JSCCASCJGJ, (South East District), Saket Court, New Delhi whereby the interim application under Order 39 Rule 1 and 2 CPC moved by the appellant/ plaintiff was dismissed. The said impugned order notes in para 16 that the appellant/plaintiff has sought the relief of injunction to restrain the officials of DDA, SDMC not to dispossess the plaintiff/appellant from the suit property without following due process of law. At the outset, it is also noted that on the same premise, the arguments were led by the Ld. Counsel for the appellant in the appeal.
2. The background relevant facts as culled out from the plaint are that the appellant/ plaintiff claimed to be in possession of the suit property bearing No.H1/2, Harkesh Nagar, measuring 35 sqr. Yards, New Delhi (hereinafter called the suit property) for the last more than 50 years as shown in red in the site plan. The other relatives of the plaintiff are in possession of the different properties in the same colony. The suit property was used by the plaintiff as Gher for keeping the cattle. Three floors were constructed thereon in the year 2000. The water connection was issued and Electricity connection was obtained from the BSES on 25.02.2013. The suit property is not an encroachment on the public land.
3. Plaint further states that the suit property is adjoining to the school which is bounded from all sides by a road. The road MCA DJ 22/21 MAHESH KUMAR VS. DELHI DEVELOPMENT AUTHORITY 2/ 11 of 30ft width was sanctioned and constructed in the year 2015 and there was no encroachment and obstruction done by the plaintiff in any manner and no objection was ever raised by the defendants/respondents. The Harkesh Nagar colony was a slum area consisting of Jhuggi and Jhomri and was unauthorized colony which was denotified from the development of DDA vide Notification No.LB/2106/87 dated 21.03.1987. The MCD/ Respondent no.2 regularized the unauthorized colony Harkesh Nagar vide Regulation No.631 dated 06.12.1990 and therefore, the suit property now falls under the jurisdiction of MCD/ Respondent no.2/ Defendant no.2. Plaintiff/ appellant apprehending illegal action by the defendants, gave a representation to the MCD.
4. Plaintiff came to know that under some order passed by the Hon'ble High Court in the writ petition filed by one Sh.Jivan Lal, the DDA/ Respondent no.1/ defendant no.1 and the SHO are planning to inspect the houses No.1 to 7 of H Block, Harkesh Nagar, New Delhi and the order passed by the Hon'ble High Court in the said writ was misused by the defendants in the guise that suit property H1/2 is an encroachment on public land. The defendants are bound by the various statutory provisions including the NCT of Delhi Laws (Special Provision) Act 2006. The occupant of House No.H1/2 filed a writ petition WP(C) 8189/19 wherein Hon'ble High Court vide order dated 31.07.2019 gave the opportunity to the occupants of the said property to file the civil suit and the said occupants filed the civil MCA DJ 22/21 MAHESH KUMAR VS. DELHI DEVELOPMENT AUTHORITY 3/ 11 suit No.1334/2019.
5. The plaint further stated that plaintiff has come to know that defendants are contemplating demolition action on the suit property. Therefore, plaintiff filed the present suit wherein plaintiff had prayed to restrain the defendants from dispossessing the plaintiff from the suit property and demolishing the suit property till the plaintiff is rehabilitated as per the scheme of the defendants.
6. Similar was the relief claimed by the plaintiff in the interim application under Order 39 Rule 1 and 2 CPC. Respondent no.1/DDA/ defendant no.1 filed the written statement and took the plea that the suit property belongs to the Government/ DDA and falls in Khasra No.68/21/1(21408) of Village Jasola which was acquired vide award No.1309 and physical possession thereof was handed over by DDA on 08.05.1962 to LAC department and was transferred to the Engineering Department of the DDA for Okhla Industrial Area on 27.09.1962. Plaintiff has no right, title or interest in the suit property and is a rank tresspasser on the Government Land. Suit property is not a part of Harkesh Nagar and situated on the public road which is near Harkesh Nagar colony. In the Writ Petition filed by Sh.Jivan Lal bearing WP(C) No.12223/16, directions were given to demolish the suit property as well and Special Task Force constituted under the directions of Hon'ble Supreme Court, in its 31st Meeting dated 26.07.2019 directed to removal of the encroachment on the public land including the suit property and MCA DJ 22/21 MAHESH KUMAR VS. DELHI DEVELOPMENT AUTHORITY 4/ 11 therefore, this court does not have the jurisdiction to entertain the suit. The suit property is situated on public road. Defendant denied the Site Plan filed by the plaintiff and stated that plaintiff is not entitled to any protection under any Act.
7. Ld. Counsel for appellant/ plaintiff had argued that Ld. Trial Court had wrongly relied upon the judgment of Anathula Sudhakar Vs. P. Buchi Reddy 596(2008) 4 SCC to hold that cloud is raised over the title of the plaintiff to the suit property. He further argued that in the writ petition WP(C) No.12223/16 filed by Sh.Jivan Lal, the defendant no.1/ DDA in its reply had taken the stand that the area in question does not fall under the jurisdiction of the DDA. He argued that there was no encroachment of the road and as per the public notice dated 28.10.2009 published via Gazette Notification of DDA, the requirement of width of road is 9 meter which is the case on the spot. He further relied upon the judgment of DDA Vs. Engineering and Industrial Corporation Pvt. Ltd. RSA 153/2015 Delhi D.o.D 30.11.2018 and argued that in case the DDA wishes to recover the possession of the land, they have to follow the due process of law when it comes to a person who is in settled possession of the property.
8. Ld. Counsel for the respondent/ DDA had argued that the plaintiff/ appellant is an encroacher on the public land and he is not entitled to protection under The NCT of Delhi Laws (Special Provisions) second Act 2011 as amended from time to MCA DJ 22/21 MAHESH KUMAR VS. DELHI DEVELOPMENT AUTHORITY 5/ 11 time (hereinafter called The Act) as the case of the appellant is hit by Section 4 of the said Act. She further argued that the Harkesh Nagar colony which was unauthorized colony has been regularized way back in the yea 1990 and the suit property does not fall in any Jhuggi Jhompri scheme so as to entitle the appellant to the protection under the special law.
9. Perusal of the plaint reflects that this is a suit for permanent injunction simplicitor wherein the appellant/ plaintiff prayed for restraining the defendants/ respondents from demolishing the suit property till the appellant/ plaintiff is rehabilitated as per the scheme of the defendants. Similar was the relief sought in the interim application. However, Ld. Trial Court as well as Ld. Counsel for appellant proceeded ahead with presumption that the plaintiff/ appellant has sought the injunction to restrain the respondents not to dispossess from the suit property without following due process of law.
10. Perusal of the plaint and the documents relied upon by the plaintiff prima facie reflects that appellant/plaintiff has not placed on record any title documents of the suit property. Plaintiff simply claims himself to be in settled possession of the suit premises for more than 50 years. However, there are no such documents on record issued to the plaintiff. It is plaintiff's case that the suit property is situated in Harkesh Nagar colony and the said colony has been regularized by the MCD vide resolution No.631 dated 06.12.1990. This being the case, prima facie, the suit property is situated in the unauthorized colony Harkesh MCA DJ 22/21 MAHESH KUMAR VS. DELHI DEVELOPMENT AUTHORITY 6/ 11 Nagar which was regularized way back in the year 1990.
11. Now it has to be seen whether the case of the plaintiff is covered by any of the provisions of The Special Act as amended from time to time. The preamble of the said Act itself states that revised policy for proper arrangement for relocation and rehabilitation of slum dwellers and Jhuggi Jhompri Clusters in NCT of Delhi has been formulated and Delhi Urban Shelter Improvement Board Act 2010 has been enacted and notified w.e.f. 01.07.2010. It further states that DUSIB has identified about 685 Jhuggi Jhompri Clusters in the NCT of Delhi.
12. Section 3 of the said Act stipulates regarding the cases in which encroachment is to be kept in abeyance. However, section 4 of the said Act carves out the exception regarding the cases in which the provision of Act will not apply. Section 3 and 4 of the Act are reproduced as under:
3. Enforcement to be kept in abeyance:
(1) Notwithstanding anything contained in any relevant law or any rules, regulations or byelaws made thereunder, the Central Government shall before the expiry of this Act, take all possible measures to finalise norms, policy guidelines, feasible strategies and make orderly arrangements to deal with the problem of encroachment or unauthorised development in the form of encroachment by slum dwellers and JhuggiJhompri clusters, [* * *] unauthorised colonies, village abadi area (including urban villages), and their extensions, existing farm houses involving construction beyond permissible building limits and schools, dispensaries, religious institutions, cultural institutions, storages, warehouses and godowns used for agricultural inputs or produce (including dairy and poultry) in rural areas built on agricultural land, as mentioned below--
(a) orderly arrangements for relocation and rehabilitation of slum dwellers and JhuggiJhompri clusters in Delhi in accordance with the provisions of the Delhi Urban Shelter Improvement Board Act, 2010 (Delhi Act 7 of 2010) and [the Master Plan] to ensure its development in a sustainable, MCA DJ 22/21 MAHESH KUMAR VS. DELHI DEVELOPMENT AUTHORITY 7/ 11 planned and humane manner;
[* * *] [(c) orderly arrangements in accordance with the provisions of the National Capital Territory of Delhi (Recognition of Property Rights of Residents in Unauthorised Colonies) Act, 2019, the National Capital Territory of Delhi (Recognition of Property Rights of Residents in Unauthorised Colonies) Regulations, 2019 and the regulations for village abadi area (including urban villages) and their extensions as per the following cutoff dates--
(i) for unauthorised colonies as provided in the National Capital Territory of Delhi (Recognition of Property Rights of Residents in Unauthorised Colonies) Regulations, 2019;
(ii) for village abadi area (including urban villages) and their extensions as existed on the 31st day of March, 2002 and where construction took place even beyond that date and up to 1st day of June, 2014;]
(d) policy regarding existing farm houses involving construction beyond permissible building limits;
(e) policy or plan for orderly arrangement regarding schools, dispensaries, religious institutions, cultural institutions, storages, warehouses and godowns used for agricultural inputs or produce (including dairy and poultry) in rural areas built on agricultural land and guidelines for redevelopment of existing godown clusters (including those for a storage of nonagricultural goods) required to cater to the needs of the people of the National Capital Territory of Delhi;
(f) orderly arrangements in respect of special areas in accordance with the Building Regulations for Special Area, Unauthorised Regularised Colonies and Village Abadis, 2010 within overall ambit of Master Plan in force; and
(g) policy or plan for orderly arrangements in all other areas of the National Capital Territory of Delhi in consonance with the Master Plan on its review.
(2) Subject to the provisions contained in subsection (1) and notwithstanding any judgment, decree or order of any court, status quo--
(i) as on the 1st day of January, 2006 in respect of encroachment or unauthorised development;
[(ii) in respect of unauthorised colonies identified under the National Capital Territory of Delhi (Recognition of Property Rights of Residents in Unauthorised Colonies) Regulations, 2019, in respect of village abadi area (including urban villages) and their extensions, which existed on the 31st day of March, 2002, and in aforesaid categories, where construction took place up to 1st day of June, 2014, as mentioned in subsection (1);] MCA DJ 22/21 MAHESH KUMAR VS. DELHI DEVELOPMENT AUTHORITY 8/ 11
(iii) in respect of special areas as per the Building Regulations for Special Area, Unauthorised Regularised Colonies and Village Abadis, 2010; and
(iv) in respect of all other areas within the National Capital Territory of Delhi as on the 8th day of February, 2007, shall be maintained.
Explanation.--For the purposes of this subsection, it is hereby clarified that any development approved by the competent authority or the local authority under the relevant laws and the rules or regulations made thereunder, including repairs permissible under the building byelaws in force, shall continue to remain permitted.
(3) All notices issued by any local authority for initiating action against encroachment or unauthorised development in respect of areas referred to in subsection (1), shall be deemed to have been suspended and no punitive action shall be taken [till the 31st day of December, 2023], if--
(a) it is constructed prior to the dates specified for different areas as enumerated in subsection (2);
(b) it conforms to the safety standards as in force or such other safety requirements as may be notified by the Central Government; and
(c) it complies with the directions with respect to safety, if any, issued by the Central Government:
Provided that in case punitive action is required to be taken by any local authority, prior approval of the Administrator of the National Capital Territory of Delhi or the officer authorised by him in this behalf, shall be obtained by the authority or officer concerned. (4) Notwithstanding any other provision contained in this Act, the Central Government may, [at any time before the 31st day of December, 2023], withdraw the exemption by notification in respect of encroachment or unauthorised development mentioned in subsection (2) or subsection (3), as the case may be.
4. Provisions of this Act not to apply in certain cases.--During the period of operation of this Act, no relief shall be available under the provisions of Section 3 in respect of the following encroachment or unauthorised development, namely--
(a) encroachment on public land except in those cases which are covered under clauses [(a) and (c)] of subsection (1) of Section 3;
(b) removal of slums and Jhuggi Jhompri dwellers, [* * *] unauthorised colonies or part thereof, village abadi area (including urban villages) and their extensions in accordance with the relevant policies approved by the MCA DJ 22/21 MAHESH KUMAR VS. DELHI DEVELOPMENT AUTHORITY 9/ 11 Central Government for clearance of land required for specific public projects. (emphasis supplied).
13. Section 4 specifically stipulates regarding the encroachment of public land, no relief shall be available under provision of Section 3 in respect of encroachment or unauthorized development. It is not the case of the plaintiff that his case falls under any of the Jhuggi Jhompri Clusters and it has not been pleaded either. Therefore, the case of the plaintiff is not saved by Section 3 (1) (a) and (c) of The Act as provided in section 4 of The Act. It being the case, in my considered opinion, considering the relief sought by the plaintiff in the plaint as well as in the interim application, no prima facie case is made out for grant of any interim relief. The premise of Ld. Trial Court as well as Ld. Counsel for appellant that plaintiff cannot be dispossessed from the suit property without following due process of law is against the pleadings. In the plaint as well as in the interim application, the plaintiff had prayed for restrain from dispossession and demolition till the plaintiff is rehabilitated as per the scheme of the defendants.
14. Therefore, the initial onus is upon the plaintiff/ appellant to prima facie plead and place the documents on record documents if any to show that suit property of the plaintiff is entitled to be included in any of the schemes of the defendants which the appellant/plaintiff has failed to do so. Perusal of the site plan particularly shows that prima facie it is an encroachment upon the public land.
MCA DJ 22/21 MAHESH KUMAR VS. DELHI DEVELOPMENT AUTHORITY 10/ 11
15. Therefore, in my considered opinion, so far as the findings/conclusions of the Ld. Trial Court was correct though the reasoning and stand was not as per the pleadings of the parties. Consequently, therefore, the appeal stands dismissed.
16. However, nothing stated herein shall tantamount to the expression of any opinion on the final merits of the case which shall be decided by the Ld. Trial Court after fullfledged trial.
TCR be sent back with the copy of the judgment.
Appeal file be consigned to Record Room.
Announced & dictated in the open court on 27.09.2023 (Munish Markan) Additional District Judge02 (SE), District Courts, Saket, New Delhi pk Digitally signed by MUNISH MUNISH MARKAN MARKAN Date:
2023.09.27 18:29:49 +0530 MCA DJ 22/21 MAHESH KUMAR VS. DELHI DEVELOPMENT AUTHORITY 11/ 11