Delhi District Court
Shri Naveen Manchanda vs Development Authority on 2 February, 2015
Page No. 1 to 13
IN THE COURT OF MS. CHHAVI KAPOOR, CIVIL JUDGE,
WEST DISTRICT, TIS HAZARI COURT.
Unique ID No. 02401C0003561992
Suit No. 572/2014
Shri Om Prakash ( since deceased)
Through his LRs.
Shri Naveen Manchanda,
S/o Late Sh. Om Prakash,
R/o B22, Double Storey, Motia Khan,
Pahar Ganj , New Delhi110055. ................ Plaintiff
Versus
1. Development Authority,
Through its Vice Chairman, (DDA)
Vikas Sadan, INA, New Delhi .............Defendant No. 1
2. Union of India,
Through Its Secretary,
Ministry of Home Affairs,
New Delhi .............Defendant No. 2
S No. 572/14 Om Prakash Vs. DDA & Anr.
Page No. 2 to 13
Date of Institution of the Suit : 25.05.1992
Date of Reserving of Judgment : 02.02.2015
Date of Judgment : 02.02.2015
JUDGMENT
1. Plaintiff has filed a suit for Permanent Injunction, claiming to be in possession of suit property bearing No. 1270TA, Motia Khan, Behind Bus Stop, Sadar Thana Road, New Delhi55 since a long time. It is further claimed that the plaintiff has also installed a water connection in the property in his name and has been regularly paying house tax to the MCD since 17.03.1989.
2. It is stated that the defendants have illegally imposed damages against the plaintiff since 1979 and are now threatening to dispossess the plaintiff from the suit property without any legal cause. It is claimed that no notice for removal has been served upon the plaintiff by the DDA who have been sending their officials with orders to remove the structures constructed by the plaintiff upon the suit property (more particularly as shown in site plan filed alongwith the plaint). Hence, plaintiff has filed this suit praying for a decree of permanent injunction to restrain the defendants from removing any structure, or demolishing any portion thereof or dispossessing the plaintiff from the suit S No. 572/14 Om Prakash Vs. DDA & Anr.
Page No. 3 to 13property without due process of law.
3. Defendant/DDA has contested the suit of the plaintiff. In the written Statement, it has been claimed that the suit property falls within Khasra No. 1089/29326/19(23 Min) of Qadam Shareef, Revenue Estate, which is owned by the Government of India and which, by virtue of the Nazul agreement of 1937 stands under the Management and Control of Defendant/DDA. It is claimed that the plaintiff is in unauthorized possession of the Government Land and hence, has been assessed for damages for illegal use of 93 square yards for commercial purposes. It is further claimed that damages have been assessed from April 1979 in the name of the plaintiff, which can now not be denied by him. In this regard, the defendant relies upon proceedings of the public premises act, initiated against the plaintiff for misuser of the suit land. It is also claimed that the Jamabandi and Location Site Plan (filed alongwith Written Statement) further show the management and control of DDA over the suit land. It is claimed that the plaintiff is in unauthorized possession of the suit property and hence, is not entitled to claim any injunction. Accordingly, it is prayed that the suit of the plaintiff be dismissed.
4. A Replication to the Written Statement has been filed by the plaintiff, in which facts stated in the Written Statement have been denied and controverted with. Khasra number of the suit S No. 572/14 Om Prakash Vs. DDA & Anr.
Page No. 4 to 13property has been admitted to be a "matter of record", however, it is denied that the suit property falls within the revenue estate of Qadam Shareef. It is further denied that the suit property is owned by the Government as it is claimed that there is a dispute between the Waqf Board and DDA as to who is the owner of the suit property. It is claimed that the possession of the plaintiff in the suit property has been long and peaceful and that the defendants have no right to disturb the same. It is denied that the plaintiff is an unauthorized occupant of the suit property and hence, it is prayed that suit of the plaintiff be decreed.
5. On the basis of pleadings of the parties, following issues were framed for adjudication on 04.05.2006 :
1. Whether the plaintiff is entitled to relief of permanent injunction as prayed for ? OPP
2. Whether the suit property falls in khasra no. 1089/29, 326/19 23 min. of Qudami Revenue Estate owned by the government and control & management of DDA by virtue of Nazul Agreement of 1937 ?
3. Whether the suit is bad for want of notice u/s. 53B of the DD Act ? OPD
4. Relief.
6. During the pendency of the suit, the plaintiff expired and suit was thereafter pursued by his LR Naveen Manchanda in accordance with orders of the Predecessor Judge dated S No. 572/14 Om Prakash Vs. DDA & Anr.
Page No. 5 to 1303.11.2010.
7. In order to prove his case, LR of plaintiff examined only himself as PW1. In his evidence, PW1 relied upon site plan of the suit property (Exhibited as Ex. PW1/1), notice received by the deceased plaintiff from the MCD regarding assessment of damages bearing Diary No. 1167 dated 27.04.1989 (Exhibited as Ex. PW1/2), Receipt pertaining to damages( Exhibited as Ex. PW1/3, Ex. PW1/4, Ex.PW1/4A ), House and Water Charges Receipt ( Exhibited as Ex. PW1/5 and Ex. PW1/6), and letter received from the Waqf Board ( Exhibited as Ex. PW1/7).
8. The defendant no. 1 examined two witnesses in support of their case namely Sh. Jai Pal Singh, Kanoongo and Sh. J. L. Arora, AD, DDA as DW1 and DW2 respectively. DW1 relied upon copy of Nazul Agreement of 1937 ( Exhibited as Ex. DW1/1), Jamabandi record of Khasra Nos. 1089/29326/19 (23 Min) (Exhibited as Ex. DW1/2), Location Plan ( Exhibited as Ex. DW1/3), whereas DW2 relied upon copy of proceedings containing notices and orders passed under the Public Premises Act upon the plaintiff since 1979 ( Exhibited as Ex. DW2/1(colly)) apart from relying upon the copy of the Nazul Agreement which was already exhibited as Ex. DW1/1.
9. After conclusion of evidence, final arguments were heard by this Court.
10. I have considered the rival contentions raised by both S No. 572/14 Om Prakash Vs. DDA & Anr.
Page No. 6 to 13the parties and have gone through the judicial record.
11. My issue wise findings are as follows.
Issue no. 1 and 2.
12. Both the issues can be decided on the basis of a common finding which is as under : Plaintiff had filed the present suit for permanent injunction on the premise that he was in settled possession of the suit property since long, which was now being interfered with due to continuous illegal acts of the officials of the defendant no. 1. It was claimed by the plaintiff that the land, on which the suit property was situated, was being claimed by the defendant no. 1 to be under their management and control. It was stated b y the plaintiff that this claim of the defendant no. 1 was false as the Delhi Waqf Board were also claiming to be the owner of the land. It was claimed by the plaintiff that the title of the defendant no. 1 was under cloud as they had not proved their ownership of the land, on which the suit property was situated. It was therefore, claimed that the defendant no. 1 had no right to dispossess or interfere in peaceful possession of the plaintiff in the suit property.
As has been mentioned before hand that during the pendency of the suit, the original plaintiff namely Om Parkash, S/o Brij Lal had expired, whereafter the suit was pursued by his son namely Naveen Manchanda. The aforesaid LR examined himself as S No. 572/14 Om Prakash Vs. DDA & Anr.
Page No. 7 to 13PW1 in support of the case of the plaintiff. During his testimony, PW1 stated that his late father used to share all information regarding the suit property with him. However, in his cross examination conducted on 26.05.2011, PW1 stated that he did not know the Khasra number of the suit property. He further could not answer if the suit property fell within Khasra No. 1089/29326/19 (23 Min) of Qadam Sharif, Delhi. Moving further, in his cross examination conducted on 06.09.2011, PW1 admitted that he had not visited the suit property after he turned 15 years old. He also stated that the site plan of the suit property, (filed alongwith the plaint) had not been prepared in his presence. Most importantly, when questioned regarding the title of his father qua the suit property, the witness replied that he did not know as to how his father had become the owner of the suit property. It is a matter of record that the plaintiff never claimed to be the owner of the suit property in his plaint. However,this testimony of PW1 gave an impression to the Court that he was not well versed with the actual facts of the issue in controversy.
Moving further, plaintiff had claimed that the officials of DDA were interfering in his peaceful possession of the suit property without any lawful cause or authority to do so. It was the plaintiff's own case that their occupation in the property was being assessed to for damages by DDA, which were being S No. 572/14 Om Prakash Vs. DDA & Anr.
Page No. 8 to 13regularly paid to by him. Same was mentioned in Para 3 of his plaint. Further, it was claimed in Para 5 of the plaint that no notice from DDA had ever been served upon the plaintiff for his removal from the premises. In reply to the said averment, it was stated by the defendant that proceedings of the Public Premises Act had been initiated against the plaintiff long ago, which were infact being acknowledged by him as damages were being regularly deposied for unauthorized occupation and use of land under section 7(2) of Public Premises Act by the plaintiff. It is pertinent to mention that receipts of payment made on account of damages imposed under section 7(2) of the Public Premises Act were relied upon by the plaintiff himself and proved in evidence of PW1 as documents Ex. PW1/3, PW1/4 and PW1/4A. Hence, it was claimed by DDA that the plaintiff, by his conduct of all these years, had admitted the ownership of the DDA qua the suit land and that this conduct, now estopped the plaintiff from claiming otherwise.
13. Plaintiff had claimed in the suit that the Delhi Waqf Board were also claiming to be the owner of the suit land but no witnesses were examined by the plaintiff in his evidence to prove this claim. Only certain letters issued by the Delhi Waqf Board were relied upon by PW1 in order to prove that the title of the suit land was under cloud. Mere reliance upon these documents, purportedly issued by the Delhi Waqf Board was not sufficient.
S No. 572/14 Om Prakash Vs. DDA & Anr.
Page No. 9 to 13Plaintiff could have summoned the authority, issuing those letters or an office bearer of the Delhi Waqf Board alongwith the relevant record to show that they had any rightful claim in the suit land also. However, no such efforts were made by the plaintiff during his evidence.
14. Defendant had claimed that the property of the plaintiff, which was stated to be bearing no. 1270TA, Motia Khan behind Sadar Thana Road, New Delhi fell in Khasra no. 1089/29326/19 (23 Min) of Qadam Sharif revenue estate, which by virtue of the Nazul agreement of 1937, stood vested with the DDA. This was mentioned in para 1 of the preliminary objection of the written statement of the defendant. In reply to this averment, plaintiff admitted the same Khasra number in para no. 1 of its replication, but denied that the property was situated in revenue estate of Qadam Sharif. It was claimed that the property was situated in Motia Khan, Paharganj, New Delhi. No evidence was led by the plaintiff to show that the property did not fall within the revenue estate of Qadam Sharif. A question was put to DW1 in this regard by the plaintiff counsel in cross examination conducted on 10.09.2012, to which the witness had stated that the suit property fell within the revenue estate of Qadam Sharif. A suggestion was put to DW1 that 10393 was not the number of the suit property, which was negated by the witness. In this regard, defence witness stated that the records of the property number were lying with S No. 572/14 Om Prakash Vs. DDA & Anr.
Page No. 10 to 13MCD but it was wrong that the suit property bore no. 1270TA Motia Khan, Sadar Thana Road. Interestingly, one of the documents relied upon by the plaintiff himself in his evidence (as document Ex. PW1/4A) recorded the address of the property to be 10393, Motia Khan, Qadam Sharif estate. It is pertinent to mention that this document was a receipt, issued by DDA for recovery of damages for unauthorized occupation and use of land under section 7(2) of the Public Premises (eviction of unauthorized occupants) Act 1958. Further, the document issued by the Delhi Waqf Board (Ex. PW1/7) recorded the description of the property as 10393/1XV, attached to Masjid and Gravia, Motia Khan Delhi. DW1 had proved the Nazul Agreement of 1937 (as document Ex. DW1/1) and also the Jamabandi record and the location plan of the Khasra no. 1089/29326/19(23 Min) of Qadam Sharif (Ex. DW1/2 and DW1/3 respectively) in its evidence. The proceedings, initiated under section 7 of Public Premises Act against the plaintiff were proved by DW2 by relying upon document Ex. DW2/1 (colly).
15. It was the case of the plaintiff that he was in long undisturbed possession of the suit property, which was not liable to be disturbed by anybody except by due process of law. However, counsel for the defendant argued that injunction could not be granted to an unauthorized occupant against the true owner of the property. In this regard, reliance can be placed upon S No. 572/14 Om Prakash Vs. DDA & Anr.
Page No. 11 to 13judgment of the Supreme Court given in the cases of "Mahadeo Savlaram Shelke" and "Shiv Kumar Chadda's Vs. MCD".
16. In the cases stated above, the Hon'ble Apex Court had broadly laid down the priniciple that judicial proceedings could not be used to protect or perpetuate a wrong committed by any person. The said principle was given while observing that even though the relief of injunction was discretionary, it could not be granted in favour of a tress passer against the true owner of the property. Courts have time and again observed that in action for grant of injunction, if the plaintiff wants the defendant to act in accordance with law, he must first abide by the law himself by conducting himself in a manner as one would expect a law abiding citizen to behave.
17. In the present case, plaintiff has not disclosed as to how he came in possession of the suit property. He is not claiming to be the owner thereof. On the other hand, DDA claims that the suit land is owned by the government and is vested for control and management with their department. DDA has already initiated proceedings against the plaintiff by claiming him to be an unauthorized occupant of the suit land. Though PW1 has denied services of notices under the Public Premises Act upon his father, no averment thereby denying the initiation of proceedings under section 7 of the Public Premises Act against the plaintiff has been made in replication in reply to para 2 of reply on merits of the S No. 572/14 Om Prakash Vs. DDA & Anr.
Page No. 12 to 13written statement. Plaintiff has not been able to satisfy the court as to why damages were being paid by him continuously to the DDA, when the land in his occupation, according to him, was not owned by the department. Even otherwise since proceedings under the Public Premises Act have been initiated against the plaintiff, who has acquiesed by participating in the same by paying damages, hence, it is observed that due course is being followed by the defendants in assessing the occupation / possession and damages caused there upon, due to use of the premises by the plaintiff. The defendants have shown that the possession of the plaintiff in the suit property has not gone undisturbed as they have been continuously assessed to for damages for unauthorized use and occupation of the property. Since, the possession of the plaintiff has not been settled and further he is not claiming to be the owner of the property, hence, he has not been able to satisfy the Court as to how he is entitled for the equitable relief of injunction.
18. In circumstances of the case, I do not deem it fit to grant the discretionary relief of injunction in favour of the plaintiff. Injunction as prayed for in the plaint cannot be granted. Accordingly, prayer of the plaintiff is rejected and issue nos. 1 and 2 are decided in favour of the defendant and against the plaintiff.
Issue No. 319. In view of my findings on the issues nos 1& 2 stated S No. 572/14 Om Prakash Vs. DDA & Anr.
Page No. 13 to 13above ,now there is no need to give findings on the remaining issue as to whether the suit of the plaintiff is bad for want of notice u/s 53(B) of DDA Act.
Relief
20. In view of my findings on the issue nos 1&2 stated above, suit of the plaintiff is dismissed .No order as to costs .
21. Decree sheet be prepared accordingly.
Announced in the Open Court (CHHAVI KAPOOR)
today on 02nd February, 2015 Civil Judge06/West
Tis Hazari Courts
S No. 572/14 Om Prakash Vs. DDA & Anr.
Page No. 14 to 13
CS No. 572/14 at 04:00 pm.
02.02.2015
Present : None.
Vide separate judgment of even date, the suit of the plaintiff is dismissed. No order as to costs. Decree sheet be prepared accordingly. File be consigned to record room.
(CHHAVI KAPOOR)
Civil Judge06/West
Tis Hazari Courts
S No. 572/14 Om Prakash Vs. DDA & Anr.