Delhi District Court
Wing Cdr. (Retd.) Narender Singh Dhaka vs Government Of Nct Of Delhi on 5 April, 2023
In the Court of Ms. Gurmohina Kaur: Additional District Judge-03
(South District) Saket Court Complex, New Delhi.
MCA No. 7/23
In the matter of :
1. Wing CDR. (Retd.) Narender Singh Dhaka
S/o. Late Shri Shiv Dutt Singh Dhaka
R/o. 9XL/13, Khasra no. 532, Neb Sarai, Delhi.
2. Bhupinder Singh Dhaka
S/o. Late Shiv Dutt Singh Dhaka
R/o. 8XL/03, Khasra No. 532,
Neb Sarai, Delhi ......... Appellant
Versus
1. Government of NCT of Delhi
Through its Secretary
Revenue Department,
5, Sham Nath Marg, Delhi-110054.
2. Gaon Sabha, Neb Sarai
Through BDO, MB Road, Saket, Delhi.
3. Government of NCT of Delhi
Forest Department
A Block, Vikas Bhawan, ITO, Delhi. ........ Respondent
Appeal preferred on : 13.02.2023
Judgment pronounced on : 05.04.2023
JUDGMENT
1. Vide this order, I shall dispose off the appeal filed under Section 104 r/w order XLII of CPC filed on behalf of the Appellant against the order passed dated 10.01.2023. passed by Ld. ASCJ, South, Saket Court, New Delhi in CS No. 589/2020 titled as Narender Singh Dhaka Vs. Government of NCT of Delhi.
MCA no.7/23 Page 1 of 122. It is averred in the present appeal that the Appellants have filed the suit before the Ld. Trial Court for declaration and permanent injunction against the Respondents seeking a decree of declaration in favour of Appellant No. 1 and against the Respondents declaring him to be the owner of property no. House No. 9 XL/13, Khasra no. 532, Neb Sarai, New Delhi-110068 and similarly a decree of declaration in favour of Appellant no. 2 declaring him to be the owner of House No. 8 XL/03, Khasra no. 532, Neb Sarai, New Delhi-110068 (collectively known as a suit property). It is averred that the Appellants also sought a decree of permanent injunction against the Respondents thereby restraining the Respondents, their agents, managers, representatives, etc., from interfering in the peaceful possession of the Appellants in the suit property before the Ld. Trial Court by way of the aforesaid suit. It is stated that the Appellants purchased the said total land ad-measuring 2000 square yards falling in khasra no. 532, Village Neb Sarai, New Delhi from one Sh. Satpal Sharma by virtue of Agreement to Sell dated 10.01.1986 and divided the same amongst themselves of 1000 square yards and that the numbering of each said plots was done by the Government agency. It is averred that the Appellants built their respective houses and had been residing along with their families since decades and have various proofs of possession like Aadhar Card, Ration Card, Driving License, Passports, House Tax Receipts etc., to show continuous and uninterrupted possession of the suit property since the year 1988. It is further stated that by way of the suit before the Ld. Trial Court, the Appellants also submitted that in the year 1992 proceedings under Section 86-A of the Delhi Land Reforms Act, vide Case No. 185/RA/92 were initiated against them on the basis of the report dated 31.03.1992 of Halka Patwari, which MCA no.7/23 Page 2 of 12 was ultimately dropped by the Revenue Assistant, South Delhi vide order dated 02.07.1993.
3. It is further averred that another proceeding vide Case No. 471/RA95 were also initiated against the Appellants based on report dated 17.03.1994 of Halka Patwari, which was again dropped by the Revenue Assistant, Hauz Khas, Delhi vide order dated 28.11.1996. It is averred that the Appellants are covered within the definition of Assami as provided in the Delhi Land Reforms Act, 1954 in their own right since they have been occupied the said land for more than 35 years which was beyond the specified period of limitation of three years. It is further averred that the Appellants acquired the right of bhumidari under Section 74(4) and 85 and other relevant provision of the Delhi Land Reform Act, 1954. It is stated that the Appellants since inception from 10.01.1986 have never been evicted from the suit property. Hence, the right of Gram Sabha, Neb Sarai and other Respondents have been totally extinguished under Section 67 of the Delhi Land Reforms Act, 1954 and the Gram Sabha, Neb Sarai has created right and title in favour of the Appellants in respect of the suit property. It is further averred that on 13.02.2019 without issuing any notice and without following the due procedure of law, few officials of Respondent no. 1,2 & 3 entered into the suit property and informed about a notification dated 02.04.1996 and illegally, unauthorizedly and arbitrarily directed the family of the Appellants to vacate the houses and threatened to carry out demolition process of Khasra no. 532. It is stated that on enquiry, the Appellants learnt that in the year 1996, certain directions were issued by the Hon'ble Apex Court in WP (C) No. 4677/1985 titled as MC Mehta Vs. Union of India to increase the forest cover in the MCA no.7/23 Page 3 of 12 state of Delhi and vide the aforesaid order directions were issued by the Hon'ble Apex Court to Respondent no. 1 to exclude the uncultivated surplus land falling in the hands of the Gram Sabha in ridge area from vesting in Gram Sabha and be available for creation of reserve forest in the State of Delhi. It is averred that Respondent no. 1, 2 & 3 acted in an arbitrary and illegal manner and without any application of mind or verification issued the said notification dated 02.04.1996. It is submitted that notification dated 02.04.1996 does not even mention Khasra no. 532, where the suit property was situated and therefore, the Appellants along with two other occupants of the area immediately filed WP (C) no. 1786/2019 titled as 'Wing CDR. (Retd.) Narender Singh Dhaka Vs. GNCT of Delhi', before the Hon'ble High Court of Delhi by which order dated 26.02.2019 restrained the Respondents from taking any coercive steps against the Appellants herein. It is averred that since the Writ Petition filed before the Hon'ble High Court of Delhi was restricted to the quashing of the notification dated 02.04.1996 to the extent of inclusion of khasra no. 532, Village Neb Sarai, Delhi, the Appellants filed the comprehensive suit before the Ld. Trial Court seeking comprehensive reliefs against the Respondents.
4. It is further stated in the appeal that on issuance of summons, Respondent no. 3/Forest Department and DDA filed their respective written statements before the Ld. Trial Court and in the Written Statement filed on behalf of Respondent no. 3 a ground was taken that pursuant to the provision of Section 160 of the Delhi Land Reform Act, 1954 vide file no. 315 dated 11.02.1988, the property in question had been declared to be reserved for the maintenance and development of forest and trees or any other work of public utility MCA no.7/23 Page 4 of 12 for the purpose of the said Act, which may be notified by the Administration from time to time. It is further stated that during the pendency of the Writ Petition before the Hon'ble High Court of Delhi and the suit before the Ld. Trial Court, the Forest Settlement Officer passed an order dated 16.07.2021, wherein it was observed that;
"In the line of above mentioned considered view it is decided that the accrual of forest right in favour of the Applicant is barred under Section 5 of the Indian Forest Act, 1927 and the prayer of the applicant for declaring the land in question .i.e. Khasra number 532 admeasuring 2 bigha as private land is rejected. But simultaneously the said portion of land is also excluded from the boundary of forest land as the matter of ownership right is pending/subjudice in the Hon'ble Civil Court of Saket and also on the ground that the land in question is neither part of 1994 notification nor part of 1996 notification."
Further, it has been urged in the appeal that in view of the observations made in the aforesaid order, the Appellants sought to withdraw the Writ Petition before the Hon'ble High Court of Delhi with liberty to approach the appropriate court or the Hon'ble High Court of Delhi in accordance with law if any fresh cause of action arose qua the suit property which was allowed by the Hon'ble High Court vide Order dated 18.08.2021.
5. It is submitted further in the appeal that on 10.01.2023, the impugned order was passed in a mechanical manner and the Ld. Trial Court wrongly came to the conclusion that there was no prima facie case in favour of the appellant regarding the ownership of the suit property and that there was no question of examining the balance of convenience and irreparable cause and injury. It is averred that the Ld.Trial Court had failed to appreciate that the Appellants had long possession of the suit property. It is further MCA no.7/23 Page 5 of 12 averred that Ld. Trial Court further failed to appreciate that the proceedings initiated in the year 1992 had been dropped by the Revenue Assistant, South Delhi vide order dated 02.07.1993 and similarly, case no. 471/RA/1995 which was again initiated against the Appellants based on the report dated 17.03.1994 of Halka Patwari came to be dropped from by the Revenue Assistant Hauz Khas, Delhi vide order dated 28.11.1996. It is averred that the Appellants had never been evicted from the suit property and therefore the rights of Gram Sabha and other Respondents had been totally extinguished under Section 67 of the Delhi Land Reforms Act, and the Ld. Trial Court further failed to appreciate that the said residential plot of the Appellants did not fall within the category of reserve forest and the Trial Court also failed to appreciate that the notification dated 02.04.1996 did not mention the Khasra no. 532 where the suit property falls. Further, it is stated that the Respondents had no right, title or authority in the suit property of which Appellants are the rightful owners. It is further averred that the Respondents had never come forward or asserted their title by the process of law within the prescribed provisions by the Statue of Limitation. It is averred that the observation of the Ld. Trial Court that the Appellants are actually the encroacher and in possession of the suit property could not be adjudicated without trial and the Ld. Trial Court wrongly relied that vide order file no. 315 dated 11.02.1988 the property had been declared for the maintenance and development of forest and trees and any other work for public utility and the Ld. Trial Court failed to appreciate that the statutory jurisdiction came into play only through the Indian Forest Act, 1927 and not through other office orders. It is prayed that the impugned order dated 10.01.2023 be set aside and the application under Order MCA no.7/23 Page 6 of 12 39 Rule 1 & 2 CPC filed by the appellants be allowed.
6. No written reply has been filed on behalf of the Respondents, however submissions were made wherein the appeal has been vehemently opposed. It has been argued on behalf of Counsel for Respondent No. 3 that by their own admission, the Appellants have conceded that the land belonged to Gram Sabha and vide notification dated 11.02.1988, Khasra no. 532 has been stated to be the disposal of Development Commissioner for Maintenance and Development of forest and any other work of public utility. It is further averred that as per the report of encroachment, Khasra no. 532 has been mentioned to be that in the forest area. It is averred that the order of the FSO had been challenged and even as per the order of the FSO, the claim of the Appellants to be individual private owner had been rejected. It is further averred that the as per Section 8 of the Delhi Forest Act, the jurisdiction of Civil Court was barred and the land as per revenue record vested with Gram Sabha and such Gram Sabha land now vested with the Forest Department.
7. Arguments heard as advanced by all the parties. Trial Court Record perused. Considered.
8. It is no more res-integra that for the purpose of seeking injunction under Order 39 Rule 1 & 2 CPC, the Plaintiff has to show the following necessary ingredients in his favour:-
1. Prima facie case
2. Irreparable injury
3. Balance of convenience.MCA no.7/23 Page 7 of 12
9. Reliance in this context is placed on the judgment of Shanti Kumar Panda v. Shakuntala Devi in Appeal (Civil) No. 10906 of 1996 wherein it was held by the Hon'ble Supreme Court that;
"at the stage of passing an interlocutory order such as on an application for the grant of ad-interim injunction under Rule 1 & 2 of the Order 39 CPC, the competent Court shall have to form its opinion on the availability of a prima facie case, the balance of convenience and the irreparable injury - the three pillars of which resets the foundation of any order of injunction."
Further, in Anwar Elahi v. Vinod Misra and Anr. 1955 IVAD Delhi 576, 60 (1995) DLT 752, 1995 (35) DRJ 341 wherein it was held that;
"Balance of convenience means that comparative mischief or inconvenience which is likely to issue from withholding the injunction will be greater than that which is likely to arise from granting it. In applying this principle, the Court has to weigh the amount of substantial mischief that is likely to be done to the applicant if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted."
10. In the present suit, the fulcrum of the claim of the Appellants/Plaintiffs are that they are the owners of the suit property which is situated in Khasra no. 532 and they have relied upon the report of the Forest Settlement Officer dated 16.07.2021 to claim that the suit property was not included in the forest land. On the other hand, it has been contended on behalf of the Respondents that the order of 1988 has been passed by the Hon'ble LG and was duly approved by Hon'ble NGT. It is further their case that the land belonged to Gram Sabha and the Appellants could not file the case in their individual capacity and the land could not be converted for residential purpose. It is further the case that the Gram Sabha land was now vested with the Forest Department.
MCA no.7/23 Page 8 of 1211. At this stage, careful and meaningful reading of the impugned order dated 10.01.2023 reflects that the Ld. Trial Court had duly considered all the aspects and grounds as raised and agitated by both the parties before passing the impugned order dismissing the application under Order 39 Rule 1 & 2 CPC filed on behalf of the Appellants. The relevant extract of the impugned order are reproduced below for the sake of ready reference:-
"In the instant case, it has been alleged by Plaintiffs that they are the owners-in-possession of the suit property and that since Defendants have no right, title or interest in the suit property, possession of Plaintiffs qua the suit property be protected. Plaintiffs claims to have purchased the suit property from one Satprakash Sharma vide agreement to sell dated 10.01.1986. Admittedly, there is no registered conveyance deed in favour of Plaintiffs. However, at this stage, only prima facie case must be seen and it must be evaluated as to whether Plaintiffs have been able to prima facie demonstrate claim to better title, as compared to the Defendants. While claim of the Plainiffs as to ownership of the suit property is on the basis of the above mentioned agreement to sell as well as on the principle of adverse possession, defendant no. 3/Forest Department has stated that suit property is Government land in view of notification dated 11.02.1988, issued under Section 160 of Delhi Land Reforms Act, 1954. Perusal of the said notification of 1988 shows that in places khasra no. 532, Village Neb Sarai, New Delhi at the disposal of Development Commissioner for maintenance and Development of Forest or for any other work of public utility. Though, Defendant no. 3 has not filed any subsequent order/notification of Development Comissioner vide which suit property/khasra no. 532 has been notified for development and maintenance of forests and trees, the said notification of 1988 prima facie shows that suit property which is situated in Khasra no. 532, Village Neb Sarai is not private land and that the same belongs to Government. In fact, the said aspect has been admitted by Plaintiffs themselves in para no. 5 of the Plaint, wherein it has been in essence stated that suit property belonged to Gram Sabha and that vide one resolution passed by the concerned Sarpanch, suit property/Khasra no. 532 was alloted to various persons under one 20 Point Programme and that the said persons further sold the suit property/khasra no.MCA no.7/23 Page 9 of 12
532 to various persons, including the Plaintiffs. Thus, it has been admitted by Plaintiffs that suit property/Khasra no. 532 belonged to Gram Sabha. In such circumstances, none of the residents/allotees of the suit property/Khasra no. 532 had any right to sell the suit property to any person, including the Plaintiffs. No document has been filed by Plaintiffs vide which Gram Sabha/concerned DM/any other appropriate authority had authorized residents/allotees of Khasra no. 532 to further sell the same for valuable consideration. Thus, from averments made in the Plaint itself it is clear that suit property is Government land, which inference is further fortified by notification of 1988 issued under Section 160 of Delhi Land Reforms Act, 1954. Thus, there appears to be no right/title/interest of Plaintiffs in the suit property as owners as suit property is Government land and Plaintiffs prima facie appears to be encroachers on the same.
It must also be noted here that plaintiffs have also pleaded that they have become owners of the suit property by way of adverse possession since they have been in possession of the suit property for more that 35 years. However, even the said submission does not appear to be prima facie correct as for Plaintiffs to acquire title by way of adverse possession, such possession of the Plaintiffs must have been continuous, uninterrupted and openly hostile to the title and interest of actual owner. However, in the instant case, Plaintiffs have claimed to have become owners having purchased the suit property by way of an agreement to sell dated 10.01.1986. Thus, since plaintiffs are claiming to be in possession of the suit property as owners of the same having purchased the same for valuable consideration, they cannot claim having purchased the same for valuable consideration, they cannot claim to have become owners of the same by way of adverse possession since their possession has been claimed on the basis of agreement to sell and the same is not stated to be in the nature of hostile possession, adverse to interest of the actual owner.
In view of the above discussion, there is no prima facie case in favour of Plaintiffs regarding ownership of the suit property. Hence, there is no question of examining the aspect of balance of convenience and irreparable loss and injury."
12. Furthermore, perusal of the report of Special Task Force dated 28.02.2012, reflects that as per the notification dated 11.02.1988 MCA no.7/23 Page 10 of 12 Khasra no. 532 has been mentioned along with other areas/khasras wherein the Gram Sabha of such area/khasra of Village Neb Sarai has been directed to reserve the land of the said village consisting of the area for the work of public utility. It has been further directed that for such purpose, such land shall be placed at the disposal of the Development Commissioner, Delhi, for the development of forest and trees and or any other work of public utility for the purposes of act which may be specified by the Administrator from time to time. The record further shows that khasra no. 532 has been shown as partly encroached in the form of unauthorized colony in the affidavit filed by Revenue Department before the Hon'ble NGT in OA No. 58/2013.
13. Additionally, perusal of the letter issued by Dy. Conservator of Forest (South Forest Division) dated 01.03.2019 to the Chairman STF/VC-DDA further mentions that as per demarcation of the 15 villages in Southern Ridge on the directions of Hon'ble NGT in OA No. 58/2013, 116/2015 and P44/2015 titled as Somya Gosh Vs. Government of NCT of Delhi, Khasra No. 532 is also included as an 'abadi encroachment'.
14. It is further pertinent to mention the report of STF further states that all the forest lands and wastelands of Neb Sarai village which is the property of Government or over which Government has proprietory rights are covered either under Notification of 1996 or in the order of 1988. Also, in the same report, the consolidated details of all the forest lands of Neb Sarai, Khasra no. 532 is included.
MCA no.7/23 Page 11 of 12Therefore, prima facie it appears from the record that the suit property is a Government land.
15. In the present case, it is further noted that though the Appellant/Plaintiffs have also pleaded ownership by way of adverse possession on the ground that they have been possession of the suit property for 35 years, however, the same is a matter of trial in the considered opinion of this Court. The record further reflects that at various instances, the possession of the suit property by the Plaintiffs/Appellants have been challenged during the period of 35 years by the concerned authorities though, these proceedings did not culminate to any coercive action qua the Appellants.
16. Therefore, in view of the facts adumbrated above the Appellants/Plaintiffs have failed to establish any prima facie case or to show any balance of convenience qua this suit property. Irreparable loss, if any, cannot be the sole ground to grant temporary injunction. Accordingly, this court finds no infirmity in the impugned order dated 10.01.2023 passed by the Ld. ASCJ/South/Saket.
Nothing in this order shall tantamount to any expression to the merits of this case.
Appeal is hereby dismissed.
Copy of the order be sent to Ld. Trial Court.
File be consigned to record room.
Pronounced in open Court on 05.04.2023 (Gurmohina Kaur) Additional District Judge-03, South/Saket/New Delhi MCA no.7/23 Page 12 of 12