Delhi District Court
& Sessions Judge : South District : Saket vs Municipal Corporation Of Delhi on 11 January, 2018
IN THE COURT OF MS. ASHA MENON : DISTRICT
& SESSIONS JUDGE : SOUTH DISTRICT : SAKET
NEW DELHI
CIS - CS DJ - 8222017
CNR DLST01 007368 2017
(AMENDED MEMO OF PARTIES)
1 SH. RAJIV SAVARA
S/O LT. SH. RAJ KUMAR SAVARA
R/O 11, PADMINI ENCLAVE,
AUROBINDO MARG,
NEW DELH110016.
2 SH. ARVIND SINGHAL
S/O RAJENDRA KUMAR
R/O 3, PADMINI ENCLAVE,
AUROBINDO MARG,
NEW DELH110016. ....PLAINTIFFS
VERSUS
1 MUNICIPAL CORPORATION OF DELHI
THROUGH ITS COMMISSIONER,
TOWN HALL, DELHI110006.
2 MS. AMITA AGRAWAL
W/O SH. SUBHASH AGRAWAL,
1, PADMINI ENCLAVE,
AUROBINDO MARG,
NEW DELH110016.
3 MS. MADHU SAWHNEY
W/O SH. RAVI SAWHNEY
2, PADMINI ENCLAVE,
AUROBINDO MARG,
NEW DELH110016.
CIS - CS DJ - 8222017 Page 1 of 17
4 MS. MALINI KHANNA
W/O SH. O.C. KHANNA
4, PADMINI ENCLAVE,
AUROBINDO MARG,
NEW DELH110016.
5 MR. KABIR BHANDARI
S/O SH. RANJI BHANDARI
5, PADMINI ENCLAVE,
AUROBINDO MARG,
NEW DELH110016.
6 APARNA RESEARCH & CHARITY TRUST
(POPULARLY KNOWN AS APARNA TRUST)
NO. E22, DEFENCE COLONY,
NEW DELHI 24
SERVICE TO BE EFFECTED THROUGH
ITS TRUSTREES
7 MS.ABHA BHANDARI
D/O LATE MAJ GEN. B.N. BHANDARI
NO. E22, DEFENCE COLONY,
NEW DELHI24
8 MR. RAJNI BHANDARI
S/O LATE SH. A.N. BHANDRI
8, PADMINI ENCLAVE,
AUROBINDO MARG,
NEW DELH110016.
9 MRS. PRAMA BHANDARI
W/O SH. RANJI BHANDARI
9, PADMINI ENCLAVE,
AUROBINDO MARG,
NEW DELH110016.
10 MR. VIJAY THADANI
S/O LATE SH. H.B. THANDANI
10, PADMINI ENCLAVE,
AUROBINDO MARG,
NEW DELH110016.
CIS - CS DJ - 8222017 Page 2 of 17
11 MS. M. LAKSHMI RAO,
D/O LATE SHRI M.J. RAO
12, PADMINI ENCLAVE,
AUROBINDO MARG,
NEW DELH110016. ....DEFENDANTS
(ORIGINAL MEMO OF PARTIES)
1 Sh. Rajiv Savara
S/o Lt. Sh. Raj Kumar Savara
R/o 11, Padmini Enclave,
Aurobindo Marg,
New Delh110016.
2 Sh. Arvind Singhal
S/o Rajendra Kumar
R/o 3, Padmini Enclave,
Aurobindo Marg,
New Delh110016. ....Plaintiffs
VERSUS
1 Municipal Corporation of Delhi
Through its Commissioner,
Town Hall, Delhi110006.
2 Ms. Amita Agrawal
W/o Sh. Subhash Agrawal,
1, Padmini Enclave,
Aurobindo Marg,
New Delh110016.
3 Ms. Madhu Sawhney
W/o Sh. Ravi
2, Padmini Enclave,
Aurobindo Marg,
CIS - CS DJ - 8222017 Page 3 of 17
New Delh110016.
4 Ms. Malini Khanna
W/o Sh. O.C. Khanna
4, Padmini Enclave,
Aurobindo Marg,
New Delh110016.
5 Mr. Kabir Bhandari
S/o Sh. Ranji Bhandari
5, Padmini Enclave,
Aurobindo Marg,
New Delh110016.
6 Ms. Reva Bhandari
D/o Maj. General B.N. Bhandri
6, Padmini Enclave,
Aurobindo Marg,
New Delh110016.
7 Ms. Reva Bhandari
D/o Maj. General B.N. Bhandri
7, Padmini Enclave,
Aurobindo Marg,
New Delh110016.
8 Mr. Ranji Bhandari
S/o late Sh. A.N. Bhandri
8, Padmini Enclave,
Aurobindo Marg,
New Delh110016.
9 Mrs. Prama Bhandari
W/o Sh. Ranji Bhandari
9, Padmini Enclave,
Aurobindo Marg,
CIS - CS DJ - 8222017 Page 4 of 17
New Delh110016.
10 Mr. Vijay Thadani
S/o Late Sh. H.B. Thadani
10, Padmini Enclave,
Aurobindo Marg,
New Delh110016.
11 Ms. M. Lakshmi Rao,
D/o Late Sh. M.J. Rao
12, Padmini Enclave,
Aurobindo Marg,
New Delh110016. ....Defendants
Instituted on: 10.01.2011
Order reserved on: 19.12.2017
Order pronounced on: 11.01.2018
ORDER
This order will dispose of the application U/o 12 Rule 6 CPC filed by the plaintiffs seeking a decree of declaration and permanent injunction against the defendants on the basis of the admissions made by the defendant no.1 through affidavit of Sh. Sudhir Mehta, Executive Engineer, South Zone, MCD.
The suit has been filed by the plaintiffs Sh. Rajiv Savara and Sh. Arvind Singhal against the defendant no.1, Municipal Corporation of Delhi (now South Delhi Municipal Corporation) and 10 others who are residents of Padmini Enclave. These defendants No.2 to 11 have supported the case of the plaintiffs. It may be mentioned here that an application U/o 1 Rule CIS - CS DJ - 8222017 Page 5 of 17 10 CPC was moved by the plaintiffs as the correct of the defendant no.6 is Aparna Research & Charity Trust and the defendant no.7 is Ms. Abha Bhandari, D/o Late Maj. Gen. B.N. Bhandari. The application seems to have been pending and not pursued. The application is now allowed and the amended memo of parties already filed is taken on record. It is stated in the plaint that the plaintiffs are residents of Padmini Enclave, Aurobindo Marg, New Delhi and that the Padmini Enclave is located in a land measuring 20 bighas originally forming part of Khasra No.370 and 371 min in village Kharera, Tehsil Mehrauli, Delhi, This original parcel of land was plotted into 12 separate plots along with an undivided share in the open space / land on some parts of which three roads were built in the colony and an open space left on the east of the second 40 feet wide road. The plaintiffs submitted that these roads in and surrounding colony were jointly coowned and had been built, maintained and managed till date by the owners of the various plots in Padmini Enclave.
The colony of Padmini Enclave has been described as comprising of (i) a 40 feet wide road running along side the Aurobindo Marg, (ii) a plotted area consisting of 12 separate plots on the east of this 40 feet wide road, (iii) a second 40 feet wide road running along the eastern boundary of the plotted area and (iv) an open space on the east of the second 40 feet wide road, eastern boundary of which open space is coterminus with the eastern boundary of the said land and the western boundary of which is co terminus with the eastern boundary of second 40 feet wide road.
CIS - CS DJ - 8222017 Page 6 of 17It is submitted that in or around the year 1958 the original coowners of the original parcel of land applied for sanction of the lay out plan vide resolution no.13 dated 30.07.1958. The defendant no.1, the then Municipal Corporation of Delhi sanctioned the lay out plan and plots and roads were separated as per the lay out plan. The original parcel of land was also partitioned in terms of a duly registered Partition Deed dated 02.11.1964 recognizing that the open space and the three roads in the land would always remain the joint property of the parties and thus had a 1/12th share in these common areas.
It is submitted that in the course of certain other legal proceedings before the Hon'ble High Court, the plaintiff no.1 came to know that the plaintiffs were being described as encroachers of the public street and property and on enquiries learnt that the defendant no.1 intended to link up the road no.3 with the municipal road on the northern side, thus making roads no.2 & 3 with the road no.1 a thoroughfare within the residential colony of Padmini Enclave. According to the plaintiffs, the defendant no.1 was wrongly asserting its rights of the roads no.1, 2 & 3 at Padmini Enclave under the mistaken belief that these roads were municipal roads belonging to the MCD whereas infact all the three roads were private roads of the plaintiffs and the defendants no.2 to 11 to the extent of 1/12th share each.
The plaintiffs submitted that these roads were shared by the residents of the Padmini Enclave being coowners and were being maintained jointly and regulated by them. It was further CIS - CS DJ - 8222017 Page 7 of 17 submitted that the coowners had also erected a wall along Padmini Enclave and installed iron gates in the wall along the 1st and 6th plots of the colony in exercise of their rights of ownership and to maintain the roads no.1,2 & 3 to the exclusion of all others, but that on the night of 29.08.2010, the defendant no.1 demolished one of the said walls and thus by its conduct symbolically denied the rights of the plaintiffs and the defendants no.2 to 11 over a land upon which the roads no.1, 2 & 3 are built. The wall has since been rebuilt along side road no.1.
In these circumstances, the plaintiffs claim that they were compelled to file the suit praying for a decree of declaration in terms of the resolution no.13 dated 30.07.1958 declaring and holding that the the defendants no.2 to 11 have an undivided 1/12th share each in the land comprising roads no.1, 2 & 3 as well as in the vacant land to the east of the road no.2 and further that the roads no.1, 2 & 3 of Padmini Enclave more particularly shown in the lay out plan are private roads and consequently are not public roads or municipal roads. Further, a decree of permanent injunction against the defendant no.1 claiming / treating / deeming the road no.1 and / or road no.2 and / or road no.3 as public roads and further, taking any steps to link road no.3 as depicted in the site plan with any municipal public roads on the northern side.
It is seen from the record that the written statement has been filed only by the defendants no.10 and 11 and the same is supportive of the case of the plaintiffs. The defendant no.1 has not filed a written statement. Rather, a short affidavit has been filed on CIS - CS DJ - 8222017 Page 8 of 17 behalf of the MCD by Sh. Sudhir Mehta, Executive Engineer, M1, South Zone, MCD. In this short affidavit, it is stated that as per the information received from the Town Planning Department, MCD, "no document pertaining to taking over the services of Padmini Enclave is available" in the Town Planning Department and further that as per the report received from the Land and Estate Department, MCD, "no record pertaining to taking over of Padmini Enclave is found in the I.P. Register (immovable property register)."
It is in the light of this short affidavit that the plaintiffs have filed the application U/o 12 Rule 6 CPC. It is submitted that in the light of the item no.7 of the resolution no.13 dated 30.07.1958 of the defendant no.1, there was a clear admission made on behalf of the defendant no.1 that the defendant no.1 had no records in respect of the roads and open space in question and in no way have the pleas taken in the plaint been controverted. Hence, it was prayed that the suit be decreed.
In the reply, filed by the SDMC (previously MCD), it was submitted that the application was liable to be dismissed as it was misconstrued and was devoid of merits. It was denied that there was any admission made by the defendant no.1 and that the short affidavit of Sh. Sudhir Mehta, Executive Engineer, Maintenance, South Zone merely stated clearly an aspect regarding the record being not available as to the maintenance of the road with the department. This could only show that the maintenance of the roads was by the private residents of Padmini Enclave. This CIS - CS DJ - 8222017 Page 9 of 17 could not confer ownership or title over the roads in question.
It was claimed in the reply that in the light of the resolution no. 13 dated 30.07.1958, it was clear that the care and maintenance of the roads by the private citizens would not have the effect of converting the character of the road from that of a public road to that of a private road and that the roads in question would still retain the character of a thoroughfare public road. It was claimed that this position was reflected in the lay out plan of the area which was already filed where it was shown as a thoroughfare and for all purposes was public road. It was further claimed that pursuant to the directions of the Hon'ble High Court in the Writ Petition (Civil) No.4797 of 2012 titled M/s Roseview Estates Private Limited Vs. South Delhi Municipal Corporation and Others dated 17.08.2012, a speaking order had been passed on 14.12.2012 wherein the defendant no.1 had categorically decided that the road in question was a thoroughfare and a public road. It was submitted that this decision had been challenged by the plaintiffs in the Writ Petition (Civil) No.875 of 2013 titled Mr. Arvind Singhal and Others Vs. South Delhi Municipal Corporation & Ors.. It is further stated in the reply that once the lay out plan of an area had been passed, the common register and community facilities are clearly earmarked. The residents maintaining these roads could not claim ownership over the roads. Thus, it was prayed that the application be dismissed.
Ld. counsel for the plaintiffs submitted that the written CIS - CS DJ - 8222017 Page 10 of 17 statement had not been filed and on that score the case of the plaintiffs had not been controverted. Admissions made otherwise than in pleadings were also sufficient for decreeing the suit U/o 12 Rule 6 CPC. In the short affidavit, it was admitted by the defendant no.1 that there were no records of the transfer of the roads to the defendant no1. Even as per the Resolution No.13, Item No.7, clause 5, the roads remained in the ownership of the plaintiffs and the defendants no .2 to 11 and were thus entitled to a decree.
Reliance has been placed on the judgment of the Hon'ble High Court in the case titled Rajiv Srivastava Vs. Sanjiv Tuli and Another, 119 (2005) DLT 202 (DB). Further, it is submitted, relying on the judgment of the Hon'ble Supreme Court in Pt. Chet Ram Vashist (dead) by the L.R.s Vs. Municipal Corporation of Delhi, AIR 1995 SC 430, that mere sanction of the lay out plan and earmarking of the roads therein would not result in transfer of title to the MCD. Ld. Counsel submitted that U/s 316 of the DMC Act, a private road should be declared a public road only on requisition of the majority of the owners and in the present case, the owners had not sent any requisition to the defendant no.1. Relying on the judgment of the Hon'ble High Court in the case titled Kallo Mal Gopal Chand Vs. The Commissioner / MCD, 62 (1996) DLT 536, it was submitted that the provisions of Section 316 DMC Act had to be strictly construed and the requirement precedent had to be complied with before declaration of a private street to be a public street.
CIS - CS DJ - 8222017 Page 11 of 17Ld. counsel for the plaintiffs further pointed out that pursuant to their challenge to the orders of the MCD declaring the road a public road vide orders dated 14.12.12, before the Hon'ble High Court, Ld. counsel for the MCD had stated that the defendant no.1 had been advised to withdraw the order dated 14.12.12, as the same "was not only in violation of the principles of natural justice"
but "was also contrary to the orders of the Hon'ble High Court dated 17.08.12" and therefore, the Ld. counsel for the defendant no.1 could not now rely on that very order dated 14.12.12 which has been withdrawn, to contend that the road in question was a public road.
On the other hand, Ld. Counsel for the defendant no.1 submitted that when a colony is created on the basis of lay out plans, all roads become public roads and they are described as such in the lay out plans. Further, it was submitted that clause 5 of the resolution dated 30.07.1958 clearly indicated that the roads were public to be maintained by the owners until such time the Corporation took over the management, which meant that the roads were public roads and the defendant no.1 had only allowed the co owners to maintain the roads. It was further argued that there has been no unequivocal admissions made by the defendant no.1 on the basis of which the suit could be decreed.
Ld. Counsel pointed out to an application U/s 152 read with section 151 of the CPC being I.A. No.2088 of 2013 and to the reply on behalf of the SDMC to this application. Ld. Counsel pointed out that in the said reply, the SDMC had submitted that CIS - CS DJ - 8222017 Page 12 of 17 pursuant to the directions given in the Writ Petition (Civil) No.4797 of 2012, the defendant no.1 had passed an order dated 14.12.2012 to treat the road as public road and that the construction of the wall / security gates by the plaintiffs was in the nature of encroachment of public land. It was also submitted that the MCD had stated in this reply that the plaintiffs could only maintain the public roads without causing any obstruction in free movement.
Similarly, Ld. Counsel for defendant no.1 also pointed out to the reply of the defendant no.1 to another application bearing IA No. 5243/2013 where again the MCD has taken the stand that though the management of the roads of Padmini Enclave had not been taken by the MCD, it only meant that the maintenance of the roads in question was the responsibility of the residents but it did not detract from the position that the roads in question were pubic roads. The MCD in that reply also stated that the maintenance of the roads would not detract from the character of thoroughfare of the public road as shown in the lay out plan. Since in the lay out plan, 40 feet wide road has been shown as thoroughfare, for all purposes it is a public road to which the residents of Padmini Enclave could not claim ownership. Thus, Ld. counsel for the MCD submitted that no where had the MCD construed the case of the plaintiffs and merely on the short affidavit, no conclusion could be drawn that the MCD had admitted the case of the plaintiffs.
I have heard the submissions of Sh. Raman Duggal and Sh. S.K. Gandhi, Ld. Counsel for the plaintiffs and Ms. CIS - CS DJ - 8222017 Page 13 of 17 Promila Kapoor, Ld. Counsel for the defendant no.1 and have perused the cited judgments and the material on record.
It is settled law that admissions need not be made expressly in the pleadings and even on constructive admissions the Court can proceed to pass a decree in the plaintifs' favour under the provisions of Order 12 Rule 6 CPC. As held by the Hon'ble Delhi High Court in the case titled National Textile Corporation Ltd. &Anr. Vs. Ashyal Vaderaa, 167 (2010) DLT 602, following the judgment of the Hon'ble Delhi High Court in Rajiv Srivastava's case (supra), admissions may also be gleaned from vague and unspecific denials made in the pleadings and documents or gathered from the noncontroversial specific averments made in the pleadings and documents. Thus, even in the absence of a written statement, the Court can consider the short affidavit to determine the question of admissions.
As held by the Hon'ble Delhi High Court in the case titled Vijaya Myne Vs. Satya Bhushan Kaura, 142 (2007) DLT 483 (DB), that the purpose of the provisions under Order 12 Rule 6 CPC is to enable the Court to pronounce a judgment on admissions when admissions are sufficient to entitled the plaintiff to get a decree and thus render speedy judgments and save the parties from going through the rigmarole of a protracted trial. However, the Court has to scrutinize the pleading in detail and has to come to the conclusion that the admissions are unequivocal, specific and unambiguous. The Court is also required to ignore the CIS - CS DJ - 8222017 Page 14 of 17 vague, evasive and unspecific denials as well as inconsistent pleas taken in the written statement and the reply. Even a contrary stand taken while arguing the matter would be required to be ignored.
There is no dispute that Padmini Enclave was formed on the original parcel of land which was carved out of 20 bighas originally forming part of Khasra No.370 and 371 min in village Kharera, Tehsil Mehrauli, Delhi. It is also admitted fact that the lay out plan was approved / sanctioned by the defendant no.1 vide Resolution No.13 dated 30.07.1958. One of the conditions of the Resolution was as following :
"5. roads will be maintained by the owner at his own cost until such time as the Corporation takes over the management of those roads."
According to the Ld. Counsel for the defendant no.1, SDMC this reflected ownership. However, as held by the Hon'ble Supreme Court in the case Pt. Chet Ram Vashist (supra), while Under Section U/s 313 of the DMC Act, 1957, no owner could carve out a private colony without a sanctioned lay out plan and the sanctioned lay out plan could require the owner to reserve any site for any street, open place, park, recreation ground, school or any other public purpose, the said earmarking would not vest that land so earmarked for street, park, etc in the Corporation nor would sanction of the lay out plan result in transfer of that land to the MCD. The Hon'ble Supreme Court held, that Section while imposing a bar on the exercise of power by the owner in respect of the land covered by the lay out plan did not create any right or CIS - CS DJ - 8222017 Page 15 of 17 interest in the Corporation in the land so specified. It further held that the Corporation could not claim that the land so specified for the purpose as street, park, school, etc should be transferred to it free of cost. Thus, this contention of the Ld. Counsel for the defendant no.1 that since the roads were marked in the lay out plan, therefore, they took on the garb of a public road and it belonged to the defendant no.1 is to be rejected.
The Delhi Municipal Corporation Act, 1957 provides for the declaration of a private road as a public one. For that as held by the Hon'ble High Court in Kallu Mal's case (supra), there has to be strict adherence to the procedure provided U/s 316 of the DMC Act. The majority of the residents / owners must requisition the MCD to declare the road as public road. It is clear from the plaint that the residents have made no such requisition and rather they questioned the authority of the MCD to treat their roads as public roads. By the use of the words in the Resolution that the owners were to maintain the roads till the Corporation took over the management of the roads, the MCD acknowledged the ownership rights of the plaintiffs and the defendants no.2 to 11 in the land in question. What was to be transferred, when the Corporation decided to take it over, was the management of the roads not its title. As is evident from the short affidavit of the MCD, defendant no.1 had no document to show that it had taken over the services of Padmini Enclave nor was the colony of Padmini Enclave taken over by the Land and Estate Department, MCD as per the immovable property register.
CIS - CS DJ - 8222017 Page 16 of 17In the light of these facts, the application U/o12 Rule 6 CPC moved by the plaintiffs deserves to be allowed and the same is allowed. The suit of the plaintiffs is accordingly decreed in favour of plaintiffs and against the defendants and a decree of declaration is passed in terms of the Resolution No.13 dated 30.07.1958 declaring and holding that the plaintiffs and the defendants no.2 to 11 have an undivided 1/12th share each in the land comprising of roads no.1, 2 & 3 as well as vacant land to the east road no.2 and further the roads no.1, 2 & 3 of Padmini Enclave as also shown in the lay out plan attached with the suit are private roads. A decree of permanent injunction is also passed restraining the defendant no.1 from claiming / treating / deeming the road no.1 and / or road no.2 and / or road no.3 as public roads without due adherence to the procedure as prescribed U/s 316 of the DMC Act, 1957 and also from taking steps to link road no.3 (as depicted in the site plan) to any municipal or public road on the northern side. There is no order as to costs. Decree sheet be prepared accordingly.
The file be consigned to the Record Room.
Announced in open Court (ASHA MENON )
today on 11.01.2018 District & Sessions Judge (South)
Saket/New Delhi.
CIS - CS DJ - 8222017 Page 17 of 17