Delhi District Court
Sh. Harbans Singh vs Department Of Archaeological on 12 January, 2011
IN THE COURT OF SH. GAGANDEEP JINDAL, CIVIL JIDGE05
CENTRAL, DELHI
Suit No. 461/10
IN THE MATTER OF:
Sh. Harbans Singh
S/o Sh. Ram Chander
R/o 2A, Nizamuddin East
New Delhi110013 .............PLAINTIFF
VERSUS
1. Department of Archaeological
Survey of India,
Head Office Delhi Circle,
Safdarjang Tomb, Delhi110013.
2. Municipal Corporation of Delhi
Through its Commissioner,
Town Hall, Chandni Chowk,
Delhi. ...............DEFENDANTS
Date of Institution: 12.07.2005
Date of reserved for judgment: 21.12.2010
Date of decision: 12.01.2011
SUIT FOR PERMANENT INJUNCTION AND DECLARATION.
JUDGMENT:
1. Vide this judgment, I shall dispose off the suit for permanent injunction and declaration filed by the plaintiff. Suit No. 461/10 Page 1 of 13
2. The brief facts of the case are, it is submitted by plaintiff that he is the owner of the property bearing No. 2A, Nizamuddin East, New Delhi measuring area is 25 Sq. yard which was purchased from Sh. Jassa Singh on 09.05.1973 for Rs. 2,000/ through Sale Deed and Will. It is further submitted that the plaintiff is residing and also running his workshop of repairing the vehicles in the suit property since 1973. It is further submitted that plaintiff obtained the Ration Card bearing No. 867763 on above said property and paying the House Tax regularly since 1994. It is further submitted that the defendants are threatening to plaintiff for demolishing his property and a written complaint in this regard was made to Ms. Kiran Bedi, Special Secretary to Lt. Governor Delhi on 18.03.1998 where by the defendant No. 2 was directed not to harass to plaintiff. It is further submitted that the defendant No. 1 in collusion with the defendant No. 2 has demolished the part of suit property on the month of June, 2005 when the plaintiff was in his native town in 'Punjab' to meet his sick wife. It is further submitted that the plaintiff was not served any legal notice by the defendants for removal of structures and material from the suit property. It is further submitted that he received a eviction notice dated Suit No. 461/10 Page 2 of 13 14.06.2005 which was pasted outside the wall of the suit premises in which the time of 24 hours was given to compliance the said eviction notice. It is further submitted that the above mentioned notice is the legal and was against the principles of natural justice and objections to the said notice were duly filed by the plaintiff to the office of the defendant No. 1 on 16.06.2005. It is further submitted that the plaintiff filed a suit for permanent injunction against the defendant No. 2 in the year 1995 in the court of Sh. Sanjeev Kumar, Ld. Civil Judge, Delhi, where the decree was passed in favour of the plaintiff and the defendant No. 2 was restrained from dispossessing the plaintiff from the suit property in the year 2003. It is further submitted that the defendants are still threatening the plaintiff to dispossessing from the suit property. Hence this suit is filed.
3. On the other hand, defendant No. 1 in his written statement has taken the preliminary objection that the present suit is not maintainable because no notice U/s 80 CPC is served to the answering defendant, and because of the plaintiff has sought injunction the operation of statue i.e. Ancient Monuments and Suit No. 461/10 Page 3 of 13 Archaeological Sites and Remains Act, 1957 (AMASR). It is further submitted that no private construction is allowed within protected monument and after 16.06.1992 no construction will be permitted within 100 Mts. of protected monument. It is further submitted that the suit property is located within protected monument known as "Arab ki Sorai" which was declared a protected monument by the Gaz. Notification dated 12.11.1927. It is further submitted that the said monument is enclosed within the larger monument complex of "Humayun Tomb" which is not only a protected monument but is declared as a 'World Heritage Site' by United Nations Education Social and Cultural Organisation (UNESCO). The defendant denied that the plaintiff is the owner of the property bearing No. 2 A, Nizamuddin East. It is further submitted that the Ration Card and Telephone connection and payment of House Tax cannot impart any ownership right. It is further submitted that show cause notice dated 11.03.2003 was issued to the plaintiff. It is also denied that the notice dated on 14.06.2005 was illegal and was against the principles of the natural justice. It is further denied that the plaintiff gave any cogent representation dated 16.06.2005 as alleged. It is further submitted that the action of the answering Suit No. 461/10 Page 4 of 13 defendant in removing the plaintiff from his legal occupation from the portion of protecting monument is a legal and based on law. It is further submitted that the plaintiff cannot be misused the process of law to seek the injunction against the provisions of statue so as to continue his legal possession of a protecting monument.
4. The defendant No. 2 in his written statement has taken the preliminary objections that the present suit is not maintainable and no notice U/s 477 478 of Delhi Municipal Corporation, 1978 was served to the answering defendant. It is further submitted that the plaintiff has not supplied the ownership document of the suit property. It is further submitted that the suit property was inspected on 07.09.2005 by the officials of the answering defendant and no structure was found at the site nor any workshop was found. The defendant No. 2 denied that the threats were given to the plaintiff to dispossess him from the suit property by the answering defendant.
5. From the pleadings of the parties, following issues were framed. Suit No. 461/10 Page 5 of 13
(i) Whether the suit is not maintainable as notice U/s 80 CPC has not been served upon defendant No. 1? OPD1.
(ii) Whether the suit is not maintainable for want of service of notice U/s 477/478 of DMC Act? OPD2.
(iii) Whether the suit is not maintainable in as much as injunction has been sought against operation of statue namely Ancient Monuments and Archaeological Sites and Remains Act, 1957 and rules framed thereunder? OPD1.
(iv) Whether the suit has not been properly values for the purposes of court fee and jurisdiction? OPD1.
(v) Whether the plaintiff is entitled to a decree of declaration as prayed for ? OPP.
(vi) Whether the plaintiff is entitled to a decree of permanent injunction as prayed for ? OPP.
(vii) Relief.
6. The plaintiff has examined himself as PW1. Whereas defendants has not led any evidence.
7. Arguments heard. Record file pursued. My issue wise finding are as follow: Suit No. 461/10 Page 6 of 13
8. Issue No. 1: The onus to prove this issue is on the defendant no. 1. The defendant No. 1 has taken the objection that present suit is not maintainable as notice Under Section 80 CPC is not given. On perusal of record, it is found that an application filed U/s 80 (2) CPC filed by plaintiff is allowed vide order dated 13.07.2005. Once the application U/s 80 (2) CPC is allowed, then the question of maintainability of suit for the want of notice U/s 80 CPC does not arise. Therefore, this issue is dicided in favour of the plaintiff and against the defendant No.1.
9. Issue No. 2 : The onus to prove this issue on the defendant No. 2. The defendant No. 2 has taken the objection that present suit is not maintainable because for want of notice U/s 477/478 of Delhi Municipal Corp Act.
" Section 478 of the Delhi Municipal Corporation Act, 1957 reads as follow: (1) (2) Suit No. 461/10 Page 7 of 13 (3) Nothing in sub Section (1) shall be deemed to apply to a suit in which the only relief claimed is an injunction of the object would be defeated by the giving of notice or the postponement of institution of suit".
The only relief claimed against defendant No. 2 is permanent injunction thereby to restrain the defendants from demolish or to dispossess plaintiff from his property. In other words the only relief is injunction. In view of Section 478(3) of DMC Act, the notice U/s 478 is not necessary in present suit. Therefore, this issue is decided against the defendant No. 2 and in favour of the plaintiff.
10. Issue No. 3: The onus to prove this issue is on the defendant No. 1. But the defendant has not produced a single evidence that suit property is situated within protected monument as declared in year 1927. On the other hand the plaintiff has proved the original receipts Ex. PW1/G for year 199596, Ex. PW1/F for year 199697 and Ex. PW1/H for year 199798 for the payment of House Tax. If the suit property is situated within protected monument known as "Arab Ki Suit No. 461/10 Page 8 of 13 Sorai" as alleged by defendant, then how the MCD can issue House Tax receipts for such property in year 1996 to 1998. If the suit property is not governed by the Ancient Monument and Archaeological Sites and Remains Act, 1957 then it cannot said that the plaintiff is seeking injunction against the Act. Hence this issue is decided in favour of the plaintiff and against the defendant.
11. Issue No. 4 : The onus to prove this issue on the defendant No. 1, the defendant No. 1 has alleged in his written statement that the plaintiff has valued the suit incorrectly and proper court fees in not paid. The plaintiff has claimed permanent injunction not to demolish suit property and to declare notice dated 14.06.05 issued by defendant No. 1 as null and void. The plaintiff has affixed the proper court fee as per schedule II, The court fee Act. Hence this issue is decided against the defendant and in favour of the plaintiff.
12. Issue No. 5: The onus to prove this issue is on the plaintiff. The plaintiff has examined himself as PW1 and produced his evidence by way of affidavit Ex. PW1/1. In his evidence PW1 has reiterated the facts Suit No. 461/10 Page 9 of 13 mentioned in the plaint and put reliance on the following documents.
(a) Site Plan of suit property Ex. PW1/A.
(b) Sale agreement dated 09.04.1973 of suit property executed in favour of the plaintiff is Ex. PW1/B.
(c) Will of Sh. Jassa Singh executed in favour of the plaintiff is Ex.
PW1/c.
(d) Receipt of Rs. 2000/ is Ex. PW1/E.
(e) Ration Card No. 867763 is Ex. PW1/E.
(f) Receipts for payment of House Tax from 1995 to 1998 are Ex. PW/F to Ex. PW1/H.
(g) Assessment slips for assessing House Tax for year 199899 & 19992000 issued by MCD are Ex. PW1/K and Ex. PW1/2 respectively.
(h) Copy of objection to notice dated 14.06.05 sent to defendant No. 1 on 16.06.05 along with receiving of the same is Ex. PW1/N.
13. On the basis of these documents, the plaintiff has claimed that the notice dated 14.06.05 be declared as null and void. The Suit No. 461/10 Page 10 of 13 defendant No.1. In his written statement has submitted that plaintiff was served upon eviction notice dated 14.06.05 and he was evicted from suit property on 17.06.05. The plaintiff has produced original receipts for payment of House Tax for year 1995 to 1998 which are Ex. PW1/F to Ex. PW1/G. But these cannot prove his possession after 17.06.2005. The plaintiff has not produced any other evidence to prove that he is in the possession of suit property on 12.07.05 i.e. on filing of this suit and thereafter.
Section34 of Specific Relief Act provides that suit for declaration without seeking consequential relief is not maintainable.
The plaintiff has claimed only declaration that eviction notice dated 14.06.05 be declared null and void without claiming the consequential relief of possession as he has already been dispossessed in execution of eviction notice dated 14.06.05.
In view of these facts, the present suit of the plaintiff is hit by Section34 of Specific Relief Act in respect of this relief of declaration. Hence this issue is decided against the plaintiff and in favour of the defendant.
Suit No. 461/10 Page 11 of 13 14. Issue No. 6 The onus to prove this issue the plaintiff examined himself as PW1 and put reliance on the sale agreement dated 09.04.1973 of suit property Ex. PW1/B and Will of Sh. Jassa Singh executed in favour of the plaintiff Ex. PW1/C but none of these documents are registered as required U/s 17 of Registration Act. Therefore, these documents cannot be read in evidence. The plaintiff has produced receipts for payment of House Tax in respect of suit property from 1995 to 1998 which are Ex. PW1/F to PW1/H. But the defendant has alleged that the plaintiff was evicted from the suit property on 17.06.2005 while executing the eviction notice dated 14.06.2005. The plaintiff has not produced a single document or evidence to prove his possession of the suit property after 17.06.2005. To get the relief of the permanent injunction to restrain the defendant from demolishing the suit property or to restrain the defendants to dispossess the suit property the plaintiff has to prove his ownership as well as possession of the suit property. But in the present suit the plaintiff failed to prove his ownership and possession of the suit property. Hence this issue is decided against the plaintiff and in favour of the defendant. Suit No. 461/10 Page 12 of 13
3. Relief.
15. The plaintiff has failed to discharge the onus to prove his case. Therefore he is not entitled to claim any relief. Hence suit of plaintiff is dismissed.
Decree Sheet be prepared accordingly. File be consigned to Record Room.
Announced and Singed in the open court.
(Gagandeep Jindal) Civil Judge/Central05 12.01.2011 Suit No. 461/10 Page 13 of 13