Delhi District Court
Sh. Satya Pal vs Delhi Development Authority on 25 March, 2013
Suit No. 1030/2006
IN THE COURT OF MS. RICHA GUSAIN SOLANKI
CIVIL JUDGE(WEST):TIS HAZARI COURTS: DELHI
Suit No. 1030/2006
Sh. Satya Pal
S/o Sh. Darshan Singh
Dhaba Railway Colony
Opposite Shiv Mandir
Tilak Bridge, New Delhi.
..............Plaintiffs
Versus
1. Delhi Development Authority,
Through its Vice Chairman,
Vikas Sadan, I.N.A.,
New Delhi110023.
2. Municipal Corporation of Delhi
through its Commissioner/Administrator
Town Hall, Chandni Chowk,
Delhi110006.
...........Defendants
Date of institution : 12.03.2004
Arguments heard on : 04.03.2013
Date of decision : 25.03.2013
JUDGMENT: This is a suit for permanent injunction. The brief facts as averred in the plaint are as follows: Satya Pal Vs. DDA & Ors. 1/10 Suit No. 1030/2006
1. It is the case of the plaintiff that he was allotted a site measuring around 6x4 ft. at Railway Colony, Near Temple (Harding Bridge) (hereinafter referred to as 'suit property') on tehbazari basis with effect from 24.01.1978 and was duly intimated the same vide letted dated 24.01.1978. The plaintiff deposited Rs 135/ as security amount as demanded by MCD as condition precedent and paid the demanded monthly tehbazari fee. The plaintiff has been in possession of the suit property measuring around 6x4 ft on tehbazari basis since the past 26 years. The plaintiff lastly paid the tehbazari fee of Rs 3,000/ for the period 01.04.2003 to 31.03.2004 against receipt issued by MCD and till date, the tehbazari license is valid. The plaintiff is stated to be entitled as per the resolutions and policy adopted by the MCD and DDA for the alternative allotment of the site, if evicted. It is his case that he is being harassed and tortured by the officials of DDA and MCD who claim to be the real owners of the land by visiting the suit property with the threat of removal. The staff of DDA came to the suit property on 08.03.2004 and threatened the plaintiff to stop any further business activities over the suit property and they tried to throw the goods of the plaintiff. The officials of MCD also visited on 09.03.2004 and stopped the work of the plaintiff. They did not disclose any reason behind it but only asserted that the plaintiff has to vacate the suit property forthwith. The plaintiff Satya Pal Vs. DDA & Ors. 2/10 Suit No. 1030/2006 showed them the tehbazari license receipt paid up to date but they did not go through it and tried forcibly to throw the goods of the plaintiff for the purpose of removal and dispossess from the suit property. The plaintiff stated that he has no objection to pay the license fee to the DDA, if the DDA accepts the same and directs the MCD not to demand the tehbazari fee from the plaintiff. The plaintiff states that he has been in authorized and legal occupation and possession of the suit property since long time and the possession of the plaintiff over the suit property is settled and the plaintiff has paid the license fee upto the month of 2004.
2. Therefore, plaintiff filed the present suit praying that defendants be restrained from the suit property as shown red in the site plan as and further restrained the defendants from taking forcible possession of the suit property without giving alternative site to the plaintiff.
3. In the written statement filed by defendant no. 1/DDA, it is stated that the suit of the plaintiff is not maintainable for want of notice under Section 53 B DD Act which is mandatory before filing any suit against the DDA. It is stated that the suit has not been properly valued for the purpose of court fee and jurisdiction. The suit is stated to have became infructous as unauthorised structures have already been demolished on 27.06.2003. It is stated that plaintiff had occupied unauthorisedly the Satya Pal Vs. DDA & Ors. 3/10 Suit No. 1030/2006 government land forming part of khasra no. 467 min of mauja Inderpat and was running a shop. The land in question it is a government land transferred to DDA by virtue of Nazul Agreement 1937. It is stated that at present the suit property is lying vacant and plaintiff is not in possession. It is stated that the plaintiff is not entitled for any kind of alternative allotment being encroacher of government land.
4. In the written statement filed by defendant no. 2/MCD, it is stated that plaintiff is not entitled to any relief against the MCD as the plaintiff is eligible squatter since 1978 on the suit property. The MCD will in routine take action against the encroachment, if any carried out by the plaintiff in contravention of the tehbazari policy.
5. Vide order dated 16.03.2006 following issues had been framed by my Ld. Predecessor :
1. Whether the plaintiff was allotted a site measuring around 6x4 ft at Railway Colony, near Temple on tehbazari basis with effect from 24.01.1978? OPP
2. Whether the plaintiff is entitled to the relief of permanent injunction restraining the defendants from dispossessing the plaintiff from the suit property? OPP
3. Whether the suit of plaintiff is bad for want of notice under Section 53 B DD Act, 1957? OPD Satya Pal Vs. DDA & Ors. 4/10 Suit No. 1030/2006
4. Whether the suit of the plaintiff has become infructuos as unauthorised structure has already been demolished on 27.06.2003?
OPD
5. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD
6. Whether the plaintiff has occupied unauthorizedly the government land of khasra no. 467 min. of mauja Inder pal transferred to DDA by cirtue of Nazul Agreement, 1937? OPD
7. Relief.
6. Plaintiff has examined himself as the only witnesses in his support. PW1, entered the witness box on 08.07.2011 and tendered his affidavit Ex PW1/A in evidence which states the same facts as are stated in the plaint. He relied upon copy of allotment letter Ex PW1/II. Ex PW1/3 is the site plan. Ex PW1/4B is the copy of tehbazari receipt. Mark A and Mark B are also the copies of tehbazari receipts.
In his cross examination, he admitted that he was never issued any allotment letter by the DDA. He did not know if the owner of the suit property was DDA.
7. Defendant also examined only one witness to support its case. DW1, Sh. Ramesh Chand, Kanungo, DDA entered the witness box on Satya Pal Vs. DDA & Ors. 5/10 Suit No. 1030/2006 17.07.2012 and filed his affidavit Ex. DW1/X which states the same facts as are stated in the written statement. He relied upon Ex. DW1/1 which is the nazul agreement and Ex. DW1/2 which is the copy of jamabandi of the year 197273.
In his cross examination, he stated that he was not aware if plaintiff was issued tehbazari licence by the MCD.
8. I have heard both the parties and have perused the record.
9. Issuewise findings are as under:
Issue no. 1: Whether the plaintiff was allotted a site measuring around 6x4 ft at Railway Colony, near Temple on tehbazari basis with effect from 24.01.1978? OPP The onus of proving this issue was on the plaintiff. Plaintiff has contended that he has been provided tehbazari license which admittedly is the work of MCD and not DDA. MCD has admitted in its written statement that plaintiff is a legible squatter since 1978 over the suit property. Allotment letter Ex PW1/II also shows that the suit property was allotted to plaintiff on tehbazari license with effect from 24.01.1978. DDA has not denied in the written statenent that MCD issued tehbazari rights to the plaintiff.
Accordingly, this issue is decided in favour of the plaintiff Satya Pal Vs. DDA & Ors. 6/10 Suit No. 1030/2006 and against the defendant.
10. Issue No. 6: Whether the plaintiff has occupied unauthorizedly the government land of khasra no. 467 min. of mauja Inder Pat transferred to DDA by virtue of Nazul Agreement, 1937? OPD This issue is preliminary in nature to issue no 2 and is, therefore, being decided first. The onus of proving this issue was on the defendant. Plaintiff has not questioned the nazul agreement Ex DW1/1 or the jamabandi Ex DW1/2 which indicate that khasra no 467 is government land at the disposal of DDA. Plaintiff has also not disputed that these documents do not pertain to the suit property. However the moot point is whether the plaintiff is an unauthorized occupant over the suit property.
Ex PW1/II and the written statement of MCD makes it clear that plaintiff was issued a proper tehbazari license and he was permitted to occupy the suit property on the terms and conditions mentioned in Ex PW1/II. It is nobody's case that plaintiff has violated such terms or that such license has been revoked. Ex PW1/4B also shows that plaintiff has been paying license fee for such occupation. In such eventuality can it be said that the plaintiff has unauthorizedly occupied the suit property? The answer must be in the negative. Government authorities cannot be allowed to play such hide and seek with the citizens. It is not in dispute Satya Pal Vs. DDA & Ors. 7/10 Suit No. 1030/2006 that the issuance of tehbazari rights is within the functions of MCD and not DDA. Once MCD issues license to a person and accept fees therefor then the DDA cannot take a somersault and say that the land belongs to it and it will not treat the licenses issued by MCD as valid. If there is a lack of coordination between two departments of the government, the innocent public cannot be made to suffer.
Accordingly, plaintiff is not in unauthorized occupation of government land of khasra no. 467 min which was tranferred to DDA by virtue of Nazul agreement. This issue is decided in favour of the plaintiff and against the defendant.
11. Issue no. 2: Whether the plaintiff is entitled to the relief of permanent injunction restraining the defendants from dispossessing the plaintiff from the suit property? OPP The onus of proving this issue was on the plaintiff. In view of findings on issue no. 1 and 6, plaintiff was allotted the suit property on tehbazari license and he is not in unauthorized occupation of suit property. Accordingly he can be evicted only after following due process of law.
Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
Satya Pal Vs. DDA & Ors. 8/10 Suit No. 1030/2006
Whether the suit of plaintiff is bad for want of notice under
12. Issue no. 3: Section 53 B DD Act, 1957? OPD The onus of proving this issue was on the defendant. No evidence has been led to show that the present suit for injunction is bad for want of notice under Section 53B Delhi Development Act and does not fall within the exception provided in Section 53B Delhi Development Act.
Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
13. Issue No. 4: Whether the suit of the plaintiff has become infructuos as unauthorised structure has already been demolished on 27.06.2003? OPD The onus of proving this issue was on the defendant. No evidence has been led on this issue. No demolition report or any other document has been filed by DDA.
Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
14. Issue No. 5: Whether the suit has not been properly valued for the Satya Pal Vs. DDA & Ors. 9/10 Suit No. 1030/2006 purpose of court fee and jurisdiction? OPD The onus of proving this issue was on the defendant. The present suit has been filed for two reliefs of permanent injunction. The suit has been valued at Rs 130/ for each of the reliefs on which Court fees of Rs 26/ has been paid. The suit is therefore, properly valued for the purpose of court fees and jurisdiction.
Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
15. Issue No. 7: Relief In view of the aforesaid discussions, the suit of the plaintiff is decreed and plaintiff is entitled to the relief of permanent injunction restraining the defendants from dispossessing the plaintiff from the suit property without following due process of law. Costs of the suit awarded in favour of plaintiff and against the defendants. Decree sheet be prepared accordingly. File be consigned to record room.
Pronounced in the Open court
today on 25.03.2013 (Richa Gusain Solanki)
Civil Judge (West)
THC, Delhi/ 25.03.2013
Satya Pal Vs. DDA & Ors. 10/10