Delhi District Court
Kalu Ram @ Kalu vs Delhi Development Authority on 18 December, 2012
In the Court of Sh. Satish Kumar Arora: Commercial Civil Judge cum
Additional Rent Controller (North East District) Karkardooma Courts Delhi.
UNIQUE I.D. NO.: 02402C0070142005
CIVIL SUIT NO. 530/09
IN THE MATTER OF:
1. Kalu Ram @ Kalu
s/o Late Harbans
2. Raj Pal
3. Krishan Pal
both s/o Kalu Ram
All r/o East Vinod Nagar,
Khichripur, Delhi-110091
4. Khushhal
5. Charan Singh
6. Jai Charan
All s/o Late Hukam Singh @ Hukma
7. Harcharan
s/o Late Himmat
All r/o Village Dallupura, Delhi-110091
8. Madan Mohan
s/o Parmanand
r/o Krishna Nagar, Delhi-110051
9. Badle
10. Bhule
both s/o Late Gurdayal
11. Began
12. Chetan
13. Harkishan @ Jai Kishan
14. Ram Kishan
All s/o Rumal
All r/o Village Dallupura,
Delhi-110091
..........................Plaintiffs
Versus
1. Delhi Development Authority,
Vikas Sadan, INA, New Delhi
(Through its Vice-Chairman)
CS No. 530/09, Kalu Ram @ Kalu & Ors vs. DDA & Ors. Page No. : 1/27
2. The Commissioner Of Police,
Delhi Police, Police Head Quarters,
I.P. Estate, New Delhi-110002
3. Municipal Corporation Of Delhi,
Through its Commissioner
Town Hall, Chandni Chowk,
Delhi-110006
4. Union of India
through Land Acquisition Collector
Tis Hazari Courts,
Delhi.
5. Delhi Administration
through Lt. Governor
Raj Niwas, Raj Niwas Marg,
Delhi. ............................. Defendants
Date of Institution of the Suit : 26.03.1990
Arguments Heard : 18.12.2012
Date of Judgment : 18.12.2012
SUIT FOR PERMANENT INJUNCTION
Judgment:
1. The plaintiffs no.1 to 14 filed the present suit against the
defendant no.1 to 5 in the Hon'ble High Court of Delhi on the basis
of following facts:- that the plaintiffs are the villagers owning pieces
of land passed on to them through their forefathers in Village
Khichripur now known as East Vinod Nagar Colony. Whereas plaintiff
no.1 is the owner of 1 bigha 7 biswas of land in khasra no.32 min
wherein his sons plaintiff no.2 and 3 are carrying on the business of
'cattle dairy', plaintiff no.4 to 7 own 1 bigha and 10 biswas of land in
khasra no.76 half of which is owned by plaintiff no.4 to 6 and the
other half is owned by the plaintiff no.7. As to plaintiff no.8, he is
stated to be in possession of 600 sq. yards of land in khasra no.76.
About the remaining plaintiff no. 9 to 14, they own 2 bighas and 17
CS No. 530/09, Kalu Ram @ Kalu & Ors vs. DDA & Ors. Page No. : 2/27
biswas of land in khasra no.34 of which plaintiff no.9 and 10 are
having 1/3rd share each, plaintiff no.11 to 14 are joint owners of the
remaining 1/3rd area.
2. It is further the case that all the plaintiffs have the documents
of title regarding the aforesaid land in their respective shares /
portions.
3. It is further the case that land in Village Khichripur was
acquired under the Land Acquisition Act, 1894 by various awards
and vide Award No.30-A/70-71 (Supplementary) certain lands were
acquired in the Village. During the acquisition proceedings on
05.04.77, the land acquisition collector took proceedings for
obtaining possession and whereas possession of various pieces of
land was handed over, the land falling in Khasra no.32 min, 37 min
and 76 were not possessed as the land was fully built up with
houses.
4. It is further the case that due to urbanization of the area, the
land lost its agricultural character and had fully built up colonies of
which East Vinod Nagar colony came up in about 1963 and was
treated as an unauthorized colony. It is further the case that in a
survey conducted in the year 1977 about 600 colonies were
identified to be taken up for regularization by the civic authorities
and pursuant thereto East Vinod Nagar colony came to be
regularized by resolution no.58 of DDA / defendant no.1 dated
01.02.1983 falling in Zone E/2.
5. It is further the case that on 30.12.1986 East Vinod Nagar
colony was handed over to the MCD for development purposes and
CS No. 530/09, Kalu Ram @ Kalu & Ors vs. DDA & Ors. Page No. : 3/27
some development work was also undertaken by the MCD after the
said handing over. Further, the area under the East Vinod Nagar
colony was denotified by the Delhi Government vide two
notifications of Delhi Administration, Delhi published in Delhi
Gazette dated 30.07.1987 u/s 12(1) of Delhi Development Act r/w
notification of Govt. of India, Ministry of Health, Family Planning and
Urban Development. By virtue of these notifications, the defendant
no.1 / DDA was thus left with no right, title or interest in the property
pertaining to the present suit.
6. It is further the case that on 08.11.1988 some officials of
defendant no.1 / DDA accompanied by the local police came to the
premises of plaintiff no.1 and of 9 to 14 to demolish the existing
structure and in pursuance thereof some demolition was carried out,
however, the entire action could not be completed due to the
protests by the plaintiffs and other residents of the area. Further,
there was no notice or hearing afforded to the plaintiffs prior to the
demolition on 08.11.1988 which was thus illegal, unauthorized and
without jurisdiction.
7. It is further the case that the regularization of the colony
having taken place on 01.02.1983 and the structures of the plaintiff
built much earlier thereto stood regularized and thus cannot be
demolished in any manner by the defendants much less following
the due procedure established by law under the Delhi Development
Act and the DMC Act, 1957.
8. It is further the case that in view of the fact that the entire
area is built up including the lands in question, the compensation
CS No. 530/09, Kalu Ram @ Kalu & Ors vs. DDA & Ors. Page No. : 4/27
was neither offered nor received by the plaintiffs and it is also a
policy of the government to not to take possession of fully built up
areas as in the present case. It was further stated that despite the
award having been made in the 1971, the possession was
deliberately given up and after a lapse of 17 years, their could be no
demolition in an illegal and unauthorized manner, more so, when
the colony has been regularized.
9. It is further the case that the plaintiffs had filed a Writ Petition
No. CW 2619/88 in the Hon'ble High Court of Delhi against the
impugned illegal actions of the defendants. It is further the case that
the show cause notices were issued to the respondent / defendant
and they were restrained from dispossessing the plaintiffs / petitioner therein or from carrying out any demolition in the area in question pending the disposal of the said writ petition. It is further the case that the defendant no.1 / DDA filed its counter affidavit dated 31.01.1990 inter alia taking up preliminary objections that the khasras are situated outside the East Vinod Nagar. It is further the case that the said objection was refuted and disputed by the petitioners / plaintiffs herein by filing rejoinder to the affidavit with a detailed layout plan of the area in question with certain photographs of the locality. Further, a report dated 17.03.1990 by Mr. P. Y. Bhagat, Advocate / Notary was also filed which confirmed the existence of the land under 3 khasras situated within East Vinod Nagar, Delhi. It is further the case that on 22.02.1990 matter came up before the Hon'ble High Court of Delhi and it was opined that as the matter requires trial, the writ petition was disposed of with the observations CS No. 530/09, Kalu Ram @ Kalu & Ors vs. DDA & Ors. Page No. : 5/27 of the adjudication of the disputed question of facts by way of trial in a suit.
10. It is further the case that when the Writ Petition was dismissed as withdrawn on 22.03.1990, on the very next day i.e. on 23.03.1990, some persons / officials of defendant no.1, 2 and 3 visited the premises of the plaintiffs and attempted to interfere / disturb the peaceful possession of the plaintiffs and also threatened to demolish the existing structure and to dispossess the plaintiffs forcibly. It is further the case that the defendants were prevented by the intervention and protest of the plaintiffs and other residents of the locality, however, some demolition in Khasra no. 32 resulted.
11. It is on the basis of the aforesaid that the plaintiffs while apprehending forcible dispossession from the suit property made a prayer to pass a decree of permanent injunction thereby restraining the defendants / their employees / agents etc. from demolishing the built up structures on the suit property (khasra no.32, 34 and 76) situated in East Vinod Nagar (Khichripur), more specifically shown in the site plan filed with the plaint and to further restrain them in interfering in the peaceful possession of the plaintiffs with respect to the suit property in any manner whatsoever.
12. It is to be seen that pursuant to the filing of the present suit, Hon'ble High Court of Delhi vide its order dated 27.03.1990 directed the parties to maintain the status quo as regards the possession in respect of the disputed property of the plaintiffs till further orders. Further, by its order dated 23.04.1991, while setting down the defendants as ex-parte, the interim order was confirmed and the CS No. 530/09, Kalu Ram @ Kalu & Ors vs. DDA & Ors. Page No. : 6/27 interim application of the plaintiff u/o 39 R 1 and 2 r/w 151 CPC was disposed of. It is further to be seen that subsequently an application u/o 9 R 6 r/w S. 151 CPC was preferred on behalf of the defendant / DDA for recall of order dated 23.04.1991. The said application was allowed vide order dated 19.01.1993 and the proceedings dated 23.04.1991 and 23.03.1992 were set aside. Subsequently, vide proceedings dated 27.05.1993, the present suit came to be transferred to the Court of Ld. District Judge and it was here that the WS for and on behalf of the defendant no.1 / DDA and of the defendant no.3 / MCD came to be filed. As to defendant no.4 and 5, they were proceeded ex-parte vide order dated 11.12.1995.
13. As noted above, defendant no.1 / DDA and defendant no.3 MCD filed their written statements and contested the suit of the plaintiffs.
14. The defendant no.1 / DDA in its written statement while controverting the averments made by the plaintiffs in their plaint averred that no cause of action arises in favour of the plaintiffs as under the garb of the present suit, they are trying to encroach upon the govt. land placed at the disposal of the DDA comprised in Khasra no.32, 34 and 76 of village Khichripur, Delhi which land stood already acquired and possession thereof already taken by the DDA.
15. The details regarding the acquisition and possession were to the effect that:- whereas the land of Khasra no.32, total area of which is 13 bighas and 4 biswa was acquired vide award no. 30-A (70-71) (supplementary) and possession of land measuring 11 CS No. 530/09, Kalu Ram @ Kalu & Ors vs. DDA & Ors. Page No. : 7/27 bighas and 17 biswa was taken over by the Land & Building Department and handed over to the DDA on 05.04.1977, the possession of remaining 1 bigha and 7 biswa was not taken over since it was built up. Further, a notification u/s 22(1) of the Delhi Development Act, 1957 in respect of the said land was issued on 01.02.1979 vide notification no.F-8(31)78/L&B/LA(P)Vol-II. It was further stated that with respect to the area of 1 bigha and 7 biswa, it formed part of the regularized East Vinod Nagar according to the regularization plan as superimposed on the Aks-Shijra of Village Khichripur. It was further stated that of the remaining 11 bigha and 17 biswa, whereas some portion of it fell in the regularized plan of East Vinod Nagar, the remaining portion outside the regularized area is in the possession of the DDA. It was further stated that even the part which fell within the regularized area, a substantial portion thereof was earmarked for parks, road, dispensary, police post and other common facilities over which no private individual has any right to construct house etc. Further, some persons tried to encroach on the area earmarked for park within the Khasra no.32 and the encroachment was removed on 23.03.1990.
16. As to Khasra no.34 measuring 5 bigha and 14 biswa, it was stated that the same was acquired vide award no.28-B/70-71 (Supplementary) dated 07.11.75 and the possession thereof was taken from its owner by the Land & Building Department and Land Acquisition Collector on 22.11.1975 which was then handed over to the DDA and it was placed at its disposal u/s 22(1) of DDA Act vide notification bearing no.F-8(8)75/L&B dated 17.01.1976. It was CS No. 530/09, Kalu Ram @ Kalu & Ors vs. DDA & Ors. Page No. : 8/27 further stated that only a minor portion of Khasra no. 34 fell within the regularized area and the major portion was meant for Community facilities for the DDA Flats constructed in Mayur Vihar, Phase-II. It was further stated that in the portion falling in the regularized area some encroachment was noticed in the year 1988 which was removed on 08.11.1988 and was subsequently again noticed in the year 1990 which was removed on 23.03.1990.
17. As to Khasra no.76 measuring 11 bigha and 7 biswa, 4 bigha and 12 biswa was acquired vide award no.30-A/70-71 (Supplementary) but no possession thereof could be taken since it was built up. It was further stated that an area of 1 bigha and 11 biswa of khasra no. 76/1, 3 min. was acquired vide award no.1846 and its possession again could not be taken since a road was constructed thereupon. It was further stated that land measuring 5 bigha and 4 biswa of khasra no.76 /1, 3 min was acquired vide award no.28-B/70-71 (Supplementary) and out of which possession of 4 bigha and 4 biswa was taken over on 20.11.1975 and the possession of remaining land could not be taken since it was built up.
18. It was further stated that the plaintiffs have produced only some Khasra Girdhawaris which are not worthwhile documents showing any right or title of the land in question as they are supposed to only show cultivatory possession of agricultural lands and not for the built up lands.
19. It was further stated that it is a common case of the contesting parties that possession of part of khasra no.32 and 76 was taken CS No. 530/09, Kalu Ram @ Kalu & Ors vs. DDA & Ors. Page No. : 9/27 over and part of it was not taken over since it was built up. It was stated that the plaintiffs are claiming rights in the land, possession whereof was not taken over after acquisition, however, no plan or any other document was filed by the plaintiffs to show which part of the relevant khasras was left out from taking over possession.
20. It was further stated that part of the land comprising in the aforesaid khasra's which was regularized and fell in the East Vinod Nagar colony was handed over to the MCD for development and maintenance. Nonetheless, the DDA still has the jurisdiction with respect to those lands to ensure that the land is utilized according to its plan and no misuse is carried out. However, it was admitted that on 08.04.1988 in some part of khasra no.32 and 34, some action regarding removal of encroachment was carried out and it was only with respect to the vacant land which was in possession of the DDA.
21. It was further stated that insofar as the report of Sh. P. Y Bhagat, Advocate / Notary is concerned it has no value in the eyes of law as the said person lacked the expertise in demarcation of khasra number and was also not having the access to the revenue records.
22. It was on the basis of aforesaid that the answering defendant no.1 / DDA made a prayer to dismiss the suit of the plaintiffs with costs.
23. Coming on to the written statement filed by the defendant no. 3 / MCD, it took a preliminary objection of the suit of the plaintiffs being not maintainable in view of S.477 and 478 of DMC Act, 1957. It was further averred that the plaintiffs are not in possession of the CS No. 530/09, Kalu Ram @ Kalu & Ors vs. DDA & Ors. Page No. : 10/27 disputed property since its possession was handed over to the MCD by the DDA on 22.08.1987 and Horticulture Department of the MCD developed a park of 837.71 sq. mtrs. for the benefit of the people of the locality. The rest of the averments made in the plaint were also denied and a prayer was accordingly made to dismiss the suit of the plaintiffs with costs.
24. Plaintiffs filed the replication therein denying the averments made in the written statement and reiterating and reaffirming the averments made in the plaint.
25. Following issues were framed on the pleadings of the parties:
(i) Whether suit is bad for want of notice u/s 53B of DDA Act?.
(ii) Whether the land stands acquired and has been placed at the disposal of DDA?OPD1.
(iii) Whether the plaintiffs are owners in possession of land falling in khasra no. 32, 34 and 76 situated in Vinod Nagar, Khichripur, Delhi?OPP
(iv) Whether plaintiffs are entitled for the relief of injunction as prayed? OPP
(v) Relief.
26. In support of their case, plaintiffs examined five witnesses.
PW1 is plaintiff Rajpal who was examined by way of affidavit Ex.PW1/A and he relied upon documents Ex.P1 to P15, Ex.P16 to P18, Ex.P19 to P27 and Ex.P28 respectively. As the Ex.P16 to P18 and P28 were photocopies, these were de-exhibited and given the mark as Mark A to D respectively.
CS No. 530/09, Kalu Ram @ Kalu & Ors vs. DDA & Ors. Page No. : 11/27 PW2 Jai Charan is again one of the plaintiffs and he examined himself by way of affidavit Ex.P2 and relied upon documents Ex.PW2/1A which is the certified copy of the Jamabandi for the year 1964-65, Ex.PW2/2 which is the site plan / layout plan and Ex.PW2/5 already marked as Mark A. PW3 Virender Saini is the Draftsman and he proved the site plan prepared by him which was already Ex.PW2/2.
PW4 Sat Prakash is the Patwari, Kanungo Office, Tis Hazari, Delhi. He identified Ex.PW2/1A as the correct certified copy of the Jamabandi issued and checked by him as per the revenue records.
PW5 Ramesh Chandra, Asstt. in the Planning Department, L&B, ITO, Delhi produced the certified copy of the gazette dated 30.07.1987 and identified the same as Ex.PW5/1.
27. In order to substantiate their case, whereas defendant no.1 / DDA examined DW1 Mukesh Kumar, on the other hand, defendant no.3 / MCD examined DW2 Dharampal Malik.
28. Sh. Mehmood Hasan, ld. counsel for the plaintiffs and Sh. Ashish Sharma, ld. counsel for the defendant / DDA were heard and the judicial file including the written arguments was carefully perused.
29. Findings on the issues are given as herein under:-
Issue no.(i):
This issue concerns the suit of the plaintiffs being bad for want of notice u/s 53B of the Delhi Development Act (in short, 'the Act').
It was submitted by ld. counsel for the plaintiff that initially a writ petition was filed by the plaintiffs against the defendant no.1 / CS No. 530/09, Kalu Ram @ Kalu & Ors vs. DDA & Ors. Page No. : 12/27 DDA seeking the relief against the illegal demolition. It was further submitted that as such in case of filing of the writ petition seeking the relief of urgent nature, no notice u/s 53B of the Act is required as otherwise, the relief as sought in the present suit would have become infructuous. On the other hand, no submission was made by the ld. defence counsel with respect to the present issue.
It is to be seen that S. 53B of the Act provides for the issuance of two months prior notice in writing before the institution of any suit against it or its officials in respect of any act done, or purporting to have been done, in pursuance of the Act or any rule, regulation or bye-law made thereunder.
Notwithstanding the issuance of two months notice in writing prior to the filing of the suit, clause (3) of the aforesaid provision carves out an exception by providing that in a suit in which the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the institution of the suit, the condition of issuance of two months notice in writing prior to filing the suit would stand waived off.
Coming on to the facts of the present case, suit of the plaintiffs is for permanent injunction and the same in terms of clause (3) of S.53B of DDA Act, gives the liberty to the plaintiff not to issue the notice prior to filing of the suit. The facts as stated by the plaintiffs in their plaint was such which exempted the issuance of notice upon the concerned defendant otherwise there was every possibility of the very object of filing the suit by the plaintiffs being defeated.
CS No. 530/09, Kalu Ram @ Kalu & Ors vs. DDA & Ors. Page No. : 13/27 Thus, the issue stands decided in favour of the plaintiffs and against the defendants.
Issues no.(ii) & (iii) These issues being inter connected are disposed of by a common finding. Whereas issue no.(ii) concerns the acquisition of the disputed land by the DDA and the onus to prove it was placed upon the defendant no.1 / DDA, the issue no.(iii) concerns the ownership and possession of the plaintiffs on the land falling in khasra no.32, 34 and 76 situated in Vinod Nagar, Khichripur, Delhi and the onus to prove it was placed upon the plaintiffs.
It was submitted by the ld. counsel for the plaintiffs that insofar as the acquisition of the disputed land and its possession by the DDA is concerned, though the acquisition of the suit property is not disputed, nonetheless the DDA had failed to establish that subsequent to the passing of the award for acquisition of the suit property, its possession was taken over by the DDA. It was further submitted that the testimony of DW1 Mukesh Kumar does not help the case of the DDA as in his cross-examination he admitted that the LAC and DDA are separate departments and that the award as well as the possession taken report is prepared by the department of LAC and DDA has no concern or role to play till then. It was thus submitted by the ld. counsel for the plaintiffs that the copy of the awards filed on record by DW1 Mukesh Kumar cannot be said to have been proved as no witness from the concerned department of the LAC was examined. Insofar as the ownership and possession of CS No. 530/09, Kalu Ram @ Kalu & Ors vs. DDA & Ors. Page No. : 14/27 the plaintiffs over the suit property is concerned, it was submitted that by the testimony of PW1 Rajpal and of PW2 Jai Charan, the plaintiffs proved on record the Khasra Girdhawari's, Khatoni and Jamabandi as Ex.P1 to P14 and the authentic nature of the said documents remained unchallenged. It was further submitted that the site plan was also proved by the plaintiffs as Ex. PW2/2 and its authenticity was again got verified even through the testimony of DW1 wherein he admitted that the suit property falls within the abadi of East Vinod Nagar colony which is bounded on 3 sides. It was further submitted that the revenue record as filed was also proved by the plaintiffs through the testimony of PW4 Sat Prakash and PW5 Ramesh Chandra.
Ld. defence counsel, on the other hand, submitted that the defendant / DDA conclusively established that the disputed land falling in the khasra no.32, 34 and 76 was acquired and placed at its disposal by virtue of various awards proved on record by DW1. Ld. defence counsel further submitted that by virtue of the following judgments, the civil suit is not maintainable once the acquisition proceedings have been made. The judgments are:-
(a) Sitaram Bhandar Society, New Delhi vs. Lt. Governor, Govt.
of NCT of Delhi & Ors., 2009 X AD (S.C.) 389;
(b) N. K. Ahuja vs. Union of India & Ors., 107(2003) DLT 295 (DB) Insofar as the authorities cited by the ld. defence counsel in support of his contentions is concerned, the same are CS No. 530/09, Kalu Ram @ Kalu & Ors vs. DDA & Ors. Page No. : 15/27 distinguishable and are not applicable to the facts in hand as in the present case it is not the acquisition proceedings which have been challenged, rather the concern of the plaintiffs is with respect to their dispossession from the suit property, the same having not been acquired after passing of the relevant award since it was found to be built up.
Now, coming on to the testimony of DW1 who examined himself by way of affidavit Ex.DW1A, the witness stated that he is working as a Patwari in DDA and as such is conversant with the facts of the present case. He further stated that the plaintiffs under the garb of the present suit are trying to encroach upon the Govt. land which is forming part of khasra no.32, 34 and 76 of Village Khichripur, Delhi. He further stated that with respect to Khasra no. 32, part of its land was acquired vide award Ex.DW1/1 and its possession was taken over by DDA vide notification dated 01.02.1979 Ex.DW1/2. He further stated that with respect to khasra no.34, the entire land was acquired vide award Ex.DW1/3 and its physical possession was taken over by the DDA on 20.11.1975 vide notification Ex.DW1/4. He further stated that with respect to khasra no.76, a portion of land of 4 bigha and 12 biswa was acquired vide award Ex.DW1/5, the other area of 1 bigha and 11 biswa was acquired vide award Ex.DW1/6 and the remaining land of 5 bigha and 4 biswa was acquired vide another award. He further stated that the 'kabza karwahi' with regard to the handing over of the acquired land by the LAC to DDA was done vide Ex.DW1/7. He also proved the Aks Shijra of the disputed land as Ex.DW1/8.
CS No. 530/09, Kalu Ram @ Kalu & Ors vs. DDA & Ors. Page No. : 16/27 It is pertinent to note that Ex.DW1/7 which was the kabza karwahi proceedings was not filed on record by the concerned witness and as such there is no document produced and proved on record by the defendant no.1 / DDA as to the taking over of the possession of the disputed land from the Land Acquisition Collector.
Coming on to the cross-examination of DW1, he admitted that prior to filing of this suit, the plaintiffs have filed a writ petition in the Hon'ble High Court of Delhi wherein a stay was granted. He further admitted that in para no.9 of his affidavit Ex.DW1/A he had mentioned that the plaintiffs have encroached upon the govt. land, however, showed his ignorance as to whether any action was taken by the DDA against the said encroachment or not. He also admitted that the land is first acquired by the LAC and the documents are also executed by the LAC and it is only thereafter that the DDA comes into picture. He further stated that he is not aware whether the suit property is the ancestral property of the plaintiffs. In his further cross-examination, the witness admitted that whenever DDA takes possession of any property, it is mandatory to do the fencing or encircle the land by barbed wires or stone boundary walls. He also admitted that the kabza karwahi is always done by the LAC and not the DDA. In his further cross-examination he stated as correct that the DDA has not done any work or development or construction of the suit property and further after the demolition on the suit property, the property is lying vacant and is under the possession of the plaintiffs. He further stated that he had seen the suit property in East Vinod Nagar. He further stated that the Abadi of East Vinod CS No. 530/09, Kalu Ram @ Kalu & Ors vs. DDA & Ors. Page No. : 17/27 Nagar is situated within three roads. On one side of the abadi there is a National Highway 24, on the other side there is a Khichripur road and on the third side there is a 13 mtrs outer road of abadi of East Vinod Nagar. He also admitted that the suit property is within the abadi of East Vinod Nagar and the abadi of East Vinod Nagar, in turn, is situated on the land of Revenue Estate of Village Khichripur. He further stated that he cannot say whether the plaintiffs are the owners and in possession of the suit property since beginning or that the DDA illegally carried out the demolition. He admitted the notification dated 12.12.07 issued by the Hon'ble Lt. Governor who is the Chairman of the DDA as Ex. DW1/P1. He also admitted that the East Vinod Nagar colony wherein the suit property is situated was regularized on 01.02.1983 and further the colony has already been de-notified. He further stated that he cannot say whether the suit properties were built up before 1977 and that the DDA illegally carried out the demolition of the suit property.
As is to be seen from the cross-examination of the only witness examined by the defendant no.1 / DDA, in his cross-examination, contrary to his affidavit in evidence, not only he admitted the case of the plaintiffs that the suit property falls within the colony of East Vinod Nagar which has been since regularized and denotified, he also admitted that the abadi of East Vinod Nagar is situated within three roads, on one side there is NH-24, on the other there is Khichripur road and on the third side there is a 13 mtrs. outer road of abadi East Vinod Nagar. This assertion of the witness reinforced the case of the plaintiffs as PW2 Jai Charan in para no.3 of his CS No. 530/09, Kalu Ram @ Kalu & Ors vs. DDA & Ors. Page No. : 18/27 evidence by way of affidavit Ex.P2 asserted that the site plan Ex.PW2/2 of the abadi of East Vinod Nagar was got prepared by him as per the site and it shows the abadi of Vinod Nagar bounded on three sides by the roads. It is also to be seen that the plaintiffs have never concealed about the passing of award no.30-A/70-71 (Supplementary) whereby some land in Village Khichripur was acquired. In para no.6 of the original plaint filed in the Hon'ble High Court of Delhi, it was stated by the plaintiffs that lands in Village Khichripur were acquired under the Land Acquisition Act, 1894 vide award no. 30-A/70-71 (Supplementary) and on 05.04.1977 Land Acquisition Collector took proceedings for obtaining position. Not only that, it was also averred in the plaint that while taking possession of various pieces of land, land falling in Khasra no.32 min, 37 and 76 were not possessed since the land was fully built up with houses. One of the plaintiffs PW1 Rajpal also proved the said acquisition proceedings by the concerned LAC as Ex.P15 wherein it was stated that possession of 1 bigha 7 biswa of Khasra no.32 min., 10 biswa of khasra no.37 min. and 4 bigha and 12 biswa of khasra no.76/2 is not being taken as at the spot houses and some other construction is noticed. It was also stated that the possession would be taken with the help of demolition squad. The layout plan / site plan of the disputed property was also proved by the plaintiffs as Ex.PW2/2 which showed the disputed portion of the suit property lying within the abadi of East Vinod Nagar colony. The witness examined by the defendant / DDA is not a layman but a patwari who as per the law applicable is not only mandated to perform field CS No. 530/09, Kalu Ram @ Kalu & Ors vs. DDA & Ors. Page No. : 19/27 inspections but also has the duty to maintain the annual registers. It is also to be noted that one of the plaintiffs who was examined as PW1 relied upon the certified copies of the Khasra Girdhawaris for various years. One of the Khasra Girdhawaris Ex.P1 which is of khasra no.32 min. of 1 bigha and 7 biswa shows it within the abadi of Vinod Nagar and existence of construction. Another Khasra Girdhawari which is Ex.P4 and pertains to khasra no. 76/3 min., the name of the tenure holder is shown as the plaintiff Charan Singh, Jai Charan and Harcharan. Regarding the nature of land, it shows it to be of abadi Vinod Nagar. Same is the khasra girdhawari of the year 1986-87 which is Ex.P5. Ex.P6 which is the khasra girdhawari for the year 1986-87 of khasra no.76/1, it shows some portion of the land to be under the possession of the tenure holder Bhikhan, who is again one of the plaintiffs in the present suit. Ex.P7 is the Jamabandi of the year 1984-85 of the portions of khasra no.76/2 min. and shows the possession of the land under various tenure holders including Madan Mohan, Sardoon Singh, Bahadur, Ram Shankar, Jagdish Singh and others. Ex.P10 is the khasra girdhawari of the year 1982-83 of khasra no.34 min. and of the area of 2 bigha and 17 biswa and it shows the same to be in the possession of tenure holder Badle, Bhule, Chetan, Begram and Ram Kishan. Ex.P11 is again the khasra girdhawari of the same khasra for the year 1983-84. Ex.P12 is the khasra girdhawari of the same khasra for the year 1984-85.
Coming on to the filing of the various awards regarding acquisition of various areas of lands inter-alia of khasra no.32, 34 and 76, it is to be seen that neither the factum of passing of the said CS No. 530/09, Kalu Ram @ Kalu & Ors vs. DDA & Ors. Page No. : 20/27 awards is a disputed fact nor is it disputed that some portions of the said khasras were not possessed since the land was found to be built up. What was disputed by the DDA was that the disputed property / suit property is not falling within the regularized area of the abadi of East Vinod Nagar colony and it is still in the Revenue Estate of Village Khichripur. However, some portions of the disputed land were admitted to be within the area of East Vinod Nagar colony, nonetheless, it was asserted that the same has been earmarked for developmental works of the locality and thus handed over to the MCD. MCD which is the defendant no.3 in the present case took contradictory stands in its written statement itself. Whereas in para no.10 of the preliminary objections it was stated and which is reproduced here in verbatim 'that the plaintiffs are not in possession of the disputed property and the possession of the disputed property was handed over to the answering defendant by the defendant no.1 / DDA on 22.08.1987 and Horticulture Department of the answering defendant has developed a park 837.71 sq. mtrs. for the benefit of the public of that locality and the property in dispute is in the possession of the said department of the answering defendant / MCD'. Contrary to this in para no.5 & 7 of the reply on merits it was stated that the alleged possession of the plaintiffs is illegal and unauthorized and that the plaintiffs have grabbed the land and raised unauthorized construction thereon with respect to which the answering defendant reserves the right to take possession by demolition action. These contrary stands of the defendant no.3 / MCD again reinforces the case of the plaintiffs CS No. 530/09, Kalu Ram @ Kalu & Ors vs. DDA & Ors. Page No. : 21/27 about their possession of the disputed property since long. Notwithstanding the fact that no ownership documents have been filed on record and proved by the plaintiffs, nonetheless the khasra girdhawaris proved on record by the plaintiffs can definitely be taken to be a proof of their continuous possession. Insofar as the sanctity of the said document is concerned, Hon'ble High Court of Delhi in Balbir Singh vs. ADM (Revenue) & Ors., 57(1995) DLT 547 had the occasion to deal with the interpretation of the provisions of the Delhi Land Revenue Act, 1954 as well as the Delhi Land Revenue Act Rules, 1962. It was observed that 'on enactment of the Delhi Land Revenue Act 1954, the other two legislations in force in various parts of the Delhi were repealed and both of which used to deal with the manner of maintenance, upkeep and revision of the Revenue Records. The functionaries under the Delhi Land Revenue Act are conferred with various powers and vested with numerous duties. Amongst officials, the primary one being a Patwari, who is appointed u/s 13 of the Act with respect to each unit known as Halka'. It was further observed that 'maintenance of maps and field books as per S.16 is the responsibility of the Deputy Commissioner which he is supposed to discharge with the aid of other officers and officials. S. 20 of the Act says that there shall be a record of rights for each village subject to such exceptions as may be prescribed. It further says that records of rights shall consist of a register of all persons cultivating or otherwise occupying land and specifying therein the particulars required u/s 40 of the Act'. The Hon'ble High Court also had the occasion to deal with chapter IV which is concerned with the CS No. 530/09, Kalu Ram @ Kalu & Ors vs. DDA & Ors. Page No. : 22/27 Khasra Girdhawari and the map. The relevant rules regarding the filling of Khasra girdhawari were also noted and it was observed 'a duty is enjoined upon the Girdawar Kanungo on his visit to the village to verify the correctness of the list submitted by the patwari and the same is verified by Girdawar Kanungo'. It was further observed that 'the narration of aforementioned various provisions of the Act and the Rules is sufficient to come to a conclusion that the actual possession on the spot is the basis of the rights and liabilities under the Act which is of utmost importance and the provisions of the Act do enjoin upon the authorities under the Act a duty to maintain the record of rights as per the actual position existing on the spot. All entries made in the Annual Register by virtue of S. 30 of the Act are presumed to be true unless contrary is proved. In other words, there is a statutory presumption of correctness as regards the Annual Register, which presumption is rebuttable'.
In view of the aforesaid judgment, it is apparent that the plaintiffs by placing on record and proving the Khasra Girdhawaris for various period with respect to their portion of the land falling in Khasra no.32, 34 and 76 of Village Khichripur, have established that they were in possession of the disputed land. Furthermore, nothing contrary could be extracted by the defence from either the testimony of PW1 Raj Pal or of PW2 Jai Charan. Rather, a suggestion was given to PW1 which was answered in affirmative that the Khasra Girdhawari depicts that as to who is cultivating the land and CS No. 530/09, Kalu Ram @ Kalu & Ors vs. DDA & Ors. Page No. : 23/27 is in the possession and does not confer the ownership right. The witness PW1 Rajpal also stated that his father and forefathers earlier used to cultivate the disputed land. This testimony of the plaintiff / PW1 establishes that they were in possession of the disputed land since long. Now coming on to the aspect of their ownership of the disputed land, admittedly, the documents as filed by the plaintiffs does not confer any ownership rights in their favour, nonetheless, their possession of the disputed land cannot be said to be that of an encroacher or illegal in nature. Reference can also be made to the judgment of Hon'ble High Court of Delhi in Abha Tyagi & Anr. vs. Union of India & Ors, 2010 (120) DRJ 311 wherein it was observed that 'before action for demolition or removal of encroachment is taken, the Court must be satisfied, prima facie, on the basis of some documents or other tangible evidence that the petitioners or the applicants have a legal title to the property or a right to remain in possession thereof. Where a person is an encroacher and never had any right to legal possession of public land, the Courts should not grant any injunction or relief which will have the result of permitting or protecting the continued illegal occupation of public land. There may be case where at a point of time the possession or occupation may have been valid under a lease or a grant and which lease or grant may have subsequently been wrongfully terminated and the termination challenged, such a case, may however, fall in a different category where the question of balance of CS No. 530/09, Kalu Ram @ Kalu & Ors vs. DDA & Ors. Page No. : 24/27 convenience will have to be carefully examined especially when the action of termination of lease or grant is seriously challenged. But where at no point of time the petitioners had any valid right, title or interest to the property the Court ought not to grant any relief to such a petitioner even if there has been any procedural irregularities by the respondent while seeking to get back possession of public land'.
Applying the ratio of the aforesaid judgment to the facts of the present case, it has been proved by the plaintiffs that the nature of their possession by virtue of Ex.P1 to P15 was not illegal or unauthorized and as such they cannot be evicted forcibly by the defendants. Going further, the defendants on the other hand have failed to bring on record any cogent evidence so as to substantiate that any development work was in fact carried out on the disputed land or that the disputed land was in fact possessed and was encircled by barbed wires or stone boundary walls. Further, the site plan Ex.PW2/2 as filed by the plaintiffs has not been controverted by the defendants by the filing of any cogent evidence on record. As already noted, the witness DW1 did not support the case of the defendants and no sanctity, thus, could be attached to the documents filed on record through him. Even otherwise, these documents which are the awards pertaining to various khasras of Village Khichripur offer no help to the defendants with respect to the claim of the possession of the plaintiffs over the disputed land. Insofar as the testimony of DW2 Dharampal Malik is concerned, he CS No. 530/09, Kalu Ram @ Kalu & Ors vs. DDA & Ors. Page No. : 25/27 placed on record no document to substantiate that a park in fact exists on the disputed land and is maintained by the MCD. His bald testimony offers no rescue to the case of the defendants.
In view of the aforesaid, the issues are disposed of in favour of the plaintiffs and against the defendants.
Issue no.(iv) This issue concerns the plaintiff's prayer for the relief of injunction and the onus to prove it was placed upon the plaintiff.
In view of the findings given on the issue no.(ii) and (iii), it has been concluded that whereas the defendant / DDA has failed to establish that the disputed land was acquired and placed at its disposal, on the other hand, the plaintiffs have established that they were in continued possession of the disputed land since long on the basis of the khasra girdhawaris, jamabandi and the acquisition proceedings by the LAC proved by them as Ex.P1 to P15 respectively. Notwithstanding the continued possession of the plaintiffs over the disputed land, it has also been concluded that they have failed to establish their ownership over the suit property. Once, the plaintiffs having established their continued possession over the suit property, they cannot be held to be encroachers or trespassers over the disputed land and, thus, cannot be evicted without following the process of law. Thus, the present issue stands decided in favour of the plaintiffs accordingly.
30. Relief In view of the foregoing, suit of the plaintiff is decreed and a CS No. 530/09, Kalu Ram @ Kalu & Ors vs. DDA & Ors. Page No. : 26/27 decree of permanent injunction is hereby passed in favour of the plaintiffs and against the defendants and the defendants, their employees, officials, agents etc. are restrained from demolishing the built up structures on the suit property i.e. Khasra No. 32, 34 and 76 situated in East Vinod Nagar (Khichripur), Delhi more specifically as shown in red in the site plan Ex.PW2/2 and are further restrained from interfering in the peaceful possession of the plaintiffs with respect to the suit property without following the process of law. No orders as to costs. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open court
on 18.12.12 (Satish Kumar Arora)
CCJ-cum-ARC(NE), Court No. 64,
Karkardooma Courts,
Delhi
CS No. 530/09, Kalu Ram @ Kalu & Ors vs. DDA & Ors. Page No. : 27/27