Delhi District Court
Anand Swaroop Tyagi vs ) The Wazirabad CoOperative ... on 22 April, 2019
New CS No. 35160/16 Dated 22.04.2019
Old CS No. 82/14
IN THE COURT OF MS. VANDANA,
SCJ CUM RC (NORTH), ROHINI COURTS, DELHI.
In the matter of :
Anand Swaroop Tyagi
S/o late Sh. Jaggannath Tyagi
R/o 32, S.F.S., Shakti Apartment,
Ashok Vihar, Phase3,
Delhi52 ......Plaintiff
VERSUS
1) The Wazirabad Cooperative Multipurpose Society Ltd.
Ramgarh, Jahangir Puri, G.T. Karnal Road
Delhi33
Through its Secretary, Sh. Devender Singh Pal
2) Delhi Development Authority (DDA)
Vikas Sadan, INA Building,
Delhi
Through its ViceChairman ........Defendants
JUDGMENT
1. New No. : 35160/16
2. Under Section : Permanent &
Mandatory
Injunction
3. Date of Institution : 02.06.2014
4. Date of Final Order : 22.04.2019
5. Final Order : Decreed
Anand Swaroop Tyagi Vs. The Wazirabad Co-operative Society Ltd. & Ors. Page 1 of 14
New CS No. 35160/16 Dated 22.04.2019
Old CS No. 82/14
The present suit has been filed for permanent and mandatory injunction.
1. Succinctly stated the fact as mentioned in the plaint are as under: 1.1. Plaintiff's case is that defendant No. 1 is a cooperative society formed and registered under the provisions of Cooperative Societies Act VII of 1925 vide registration No. 891 dt. 09.02.1950. An agreement u/s 41 of the Act was got executed by the society which was published in Delhi State Gazette as required under the provision of Section 42 of the Land Acquisition Act, 1894. The defendant No. 1 acquired the land measuring 99 bighas 9 biswas under Khasra No. 877/1 and 1049/1 situated at Village Haiderpur for construction of houses vide Award No. 770 dt. 13.8.1955 passed by Sh. Surat Singh, Land Acquisition Collector, Delhi. Plaintiff being a member of the defendant No. 1 had acquired 32 shares of the defendant No. 1 vide Share Certificate No. 124 on 21.09.1969. In pursuance whereof the plaintiff was allotted a plot i.e. plot No. 17, Block A, in Khasra No. 877/1, 1049/1 measuring 64.1" x 42.2" (hereinafter referred as plot in question) vide allotment letter No. 228 dt. 03.05.1984 by the defendant No. 1 society. The possession was obtained on 16.12.1987. Plaintiff was enjoying the peaceful possession upon the same till 24.05.2014. Defendant No. 2 tried to intrude in the said plot and laid construction material, drilled and installed a tubewell and began construction work upon the said plot of the plaintiff. It was revealed Anand Swaroop Tyagi Vs. The Wazirabad Co-operative Society Ltd. & Ors. Page 2 of 14 New CS No. 35160/16 Dated 22.04.2019 Old CS No. 82/14 that the defendant No. 2 was planning to connect the road to its proposed housing project to be build up on land behind the said plot of the plaintiff via plaintiff's said plot. Matter was also reported to the police. Hence, the present suit has been filed for permanent and mandatory injunction.
2. Defendant no. 1 did not appear despite being duly served, therefore, the defendant no. 1 was proceeded exparte vide order dated 09.05.2016.
3. WS OF DEFENDANT NO. 2/DDA.
3.1 Vide detailed WS, preliminary objections were raised regarding no cause of action and suppression of material facts. It was contended that the suit as framed is not maintainable. Further, no statutory notice u/s 53(b) of the Delhi Development Act, 1957 was served upon the defendant No. 2. It has been further stated that the Land in question falls in khasra No. 958 min of village Bhalswa Jahangir Puri and not in Khasra No. 877/1 and 1049/1 of village Haider Pur . Further as per the land record Khasra No. 958 min of village Bhalswa Jahangir Puri stands acquired vide award No. 33 of 197879 and the physical possession of land was handed over by the Land Acquisition Collector, Land and Building department on 03.01.1979 to defendant No. 2. The same was placed at the disposal of DDA. Vide subsequent notification under section 22(1), the land was transferred to the Jahangir Puri Residential scheme on Anand Swaroop Tyagi Vs. The Wazirabad Co-operative Society Ltd. & Ors. Page 3 of 14 New CS No. 35160/16 Dated 22.04.2019 Old CS No. 82/14 01.03.1982. This Court accordingly has no jurisdiction to try and entertain the present suit. Plaintiff had filed the instant suit in collusion with the defendant No. 1.
3.2 On merits the aforesaid facts were reiterated. The entire plaint averments were denied in toto. Dismissal of the suit was sought for.
4. REJOINDER 4.1 Replication was filed vide which the averment made by the plaint were reiterated and submissions made in the WS of defendant no. 2 were refuted.
5. FRAMING OF ISSUES 5.1 Vide order dated 15.03.2018, following issues were framed:
(i) Whether plaintiff is entitled to the decree of Mandatory Injunction as prayed for ? OPP.
(ii) Whether plaintiff is entitled to the decree of Permanent Injunction as prayed for ? OPP.
(iii) Whether the suit is bad for want of statutory notice under Section 53 (b) of DD Act ? OPD 2 (iv) Whether the subject matter of the present suit is beyond the jurisdiction of this court ? OPD 2 (v) Relief. Anand Swaroop Tyagi Vs. The Wazirabad Co-operative Society Ltd. & Ors. Page 4 of 14 New CS No. 35160/16 Dated 22.04.2019 Old CS No. 82/14 6. PLAINTIFF'S EVIDENCE 6.1 The plaintiff examined four witnesses to support his case. 6.2 Plaintiff got examined himself as PW1 and tendered his
evidence vide affidavit Ex. PW1/A. He relied upon the following documents which are as under:
a) Mark A is copy of award no. 770 dated 13.08.1955 ;
b) Ex. PW1/1 is the share certificate no. 124, dated 21.09.1969 ;
c) Ex. PW1/2 is the allotment letter no. 228, dated 03.05.1984 ;
d) Ex. PW1/3 is the possession certificate dated 16.12.1987 ;
e) Ex. PW1/4 is the site plan ;
f) Ex. PW1/5 (colly) (total 9) coloured photographs dated
24.05.2014
6.3 PW2 Sh. Sunil Tyagi is the son of plaintiff and tendered his
evidence via Ex. PW2/A.
6.4 PW3 Sh. S. N. Bagri, Office Kanoongo, DM Office, North
West, Kanjhawla, Delhi, he proved the record i.e. report dated 10.02.2017 submitted by Sh. Jagbir Singh, proprietor of N. K. Engineer, invoice for a sum of Rs. 35,000/, copy of Masavi of Village Haiderpur, Delhi, one CD, TSM map, copy of order dated 26.12.2016 i.e. Ex. PW3/1 by which N. K. Engineer E356, gali no. 15, Ashok Nagar, Delhi93 was appointed by Executive Magistrate Parvesh Kumar Lakra, reference no. /SDM/SV/2016/3072 of doing the demarcation of Khasra no. 877/1 and 1049/1 of Village Haiderpur.
Anand Swaroop Tyagi Vs. The Wazirabad Co-operative Society Ltd. & Ors. Page 5 of 14New CS No. 35160/16 Dated 22.04.2019 Old CS No. 82/14 The copy of attendance sheet dated 29.12.2016 is Ex. PW3/2.
6.5 PW4 Sh. Jagbir Singh, proprietor of N. K. Engineers, E356, street no. 15, Ashok Nagar, Delhi110093 was examined and he deposed that he received the order from Executive Magistrate Sh. Parvesh Kumar Lakra vide reference No. /SDM/ SV/ 2016 / 3072 for doing the demarcation of khasra no. 877/1 and 1049/1 of village Haiderpur, in the present matter. The copy of the order dated 26.12.2016 already exhibited as Ex. PW3/1. He further deposed that after receiving the order, he visited the site on 29.12.2016 and took the signatures of all the persons who were present at the site from the department of DDA, department of revenue as well as son of the plaintiff. He further deposed that he received a sum of Rs. 35000/ against which he issued a invoice which is exhibited as Ex. PW4/1. After demarcation, he submitted his report dated 10.02.2017 to the Executive Magistrate, Saraswati Vihar, Rampura, Delhi35, which bears his signature at point A and the same is Ex. PW4/2. Along with the said report, he submitted TSM map which is Ex. PW4/3. In the said map, the land in question has been shown to be falling in khasra no. 877/1 and the same is marked as between the boundary A, B, C, D. He further deposed that the plot in question also reflecting in the said area i.e. A,B,C, D and the said plot is shown in red colour. He further deposed that he also submitted a CD along with his report i.e. Ex. PW4/4. The copy of the part of the masavi, including the field book (in Hindi & Urdu), part of sizra in Hindi (running into 7 pages) which was given to him by the Executive Magistrate, Saraswati Vihar, Anand Swaroop Tyagi Vs. The Wazirabad Co-operative Society Ltd. & Ors. Page 6 of 14 New CS No. 35160/16 Dated 22.04.2019 Old CS No. 82/14 Rampura is Ex. PW4/5 which bears his signature on each and every page as X1 to X7.
6.6 PW1 to PW4 were duly crossexamined and discharged. Thereafter, PE was closed.
7. DEFENDANT'S EVIDENCE 7.1. DW1 Sh. Karan Singh, Kanoongo, DDA, Local Shopping Complex, LU Market, Pitampura, Delhi was examined and tendered his evidence by way of affidavit Ex. DW1/1. He relied upon the following documents as under: a. Ex. DW1/A is the attested copy of award no. 33/197879 of Village Bhalswa Jehngi ;
b. Ex. DW1/B is the attested copy of possession proceedings dated 03.01.2019 ;
c. Ex. DW1/C is the attested copy of notification under Section 22(1) of the DDA Act ;
7.2 He was duly crossexamined and discharged. Thereafter, DE was closed.
8. Final arguments heard and case file perused.
9. Issue wise findings are as under: 10 I shall decide the issue no. 1 and 2 together being Anand Swaroop Tyagi Vs. The Wazirabad Co-operative Society Ltd. & Ors. Page 7 of 14 New CS No. 35160/16 Dated 22.04.2019 Old CS No. 82/14 connected one.
11. Issue No. (i) Whether plaintiff is entitled to the decree of Mandatory Injunction as prayed for ? OPP.
AND Issue no. (ii) Whether plaintiff is entitled to the decree of Permanent Injunction as prayed for ? OPP.
11.1 The onus to prove the abovesaid issues were upon the plaintiff. The basic contention in the present case is that the plaintiff has claimed himself to be the sole and exclusive owner of the plot no. 17, BlockA, measuring 64.1" X 42.4" falling in Khasra no. 877/1 and 1049/1, Ramgarh, Jahangirpuri, G. T. Karnal Road, Delhi33. On the other hand, the defendant no. 2 has alleged that the plot in question falls in Khasra no. 958 min. of Village Bhalswa Jahangirpuri which has already been acquired vide award no. 33 of 197879 dated 03.01.1979 and not in Khasra no. 877/1 and 1049/1 of Village Haiderpur.
11.2 Considering the above dispute, the Ld. Predecessor of this court vide order dated 25.04.2015 appointed the Tehsildar of the DDA as local commissioner to carry out demarcation while observing as under:
11. "Now in my opinion there is nothing absolutely on record which would probabilies Anand Swaroop Tyagi Vs. The Wazirabad Co-operative Society Ltd. & Ors. Page 8 of 14 New CS No. 35160/16 Dated 22.04.2019 Old CS No. 82/14 that the land in question falls in Khasra No. 958 min and that too conclusively. I had directed DDA to file the records in this case pertaining to the site plan in and around the Khasra No. 958 min Bhalaswa. Ld. Counsel for the defendant no. 2DDA had filed on record the lay out plan of Jahangir Puri residential scheme. From that it is not clear as to whether the land in question falls under the said Khasra. The defendant no. 1's suit which was dismissed by the Ld. ADJ was also relied upon by the defendant no. 2 in the written statement as a fact which dissuade the plaintiff from filing the present suit, however, the copy of the judgment of the said suit has not been filed by DDA. Thus, it cannot be even said that the claim in question was also subject matter under a previous litigation.
12. That being the situation, in my opinion, there is no harm if a Tehsildar of DDA is appointed as a Local Commissioner to carry out demarcation/exercise as stated in this order. Tehsildar should carry out the demarcation and this exercise should also be videographed and a CD be prepared.
13. The plaintiff/the authorized representative of the plaintiff should also be present during the process of demarcation/ascertaining as to in which Khasra No. the land in question falls. They be intimated well in time.
14. In case if DDA authorises any outside agency to assist the Tehsildar for carrying out the demarcation, the cost of the same should be Anand Swaroop Tyagi Vs. The Wazirabad Co-operative Society Ltd. & Ors. Page 9 of 14 New CS No. 35160/16 Dated 22.04.2019 Old CS No. 82/14 borne by DDA and shall be recoverable as cost at the time of final adjudication of the suit."
11.3 In compliance of above said order dt. 25.04.2015, the demarcation work was carried out on the direction of Executive Magistrate, Saraswati Vihar, Delhi, by N. K. Engineers through Total Station Machine (TSM) in the presence of Executive Magistrate (Saraswati Vihar), the staff of DDA and the plaintiff. It is pertinent to mention here that though it was carried out in the presence of the DDA staff but no objection was raised by the officials of DDA at that point of time.
11.4 The counsel for DDA cross examined the PW1 with respect to points used for demarcation, but interestingly, at page no. 10/N of the internal case file of DDA, it has been clearly stated that "points taken / used for the purpose of demarcation has already been used in past, number of times and reports prepared on the basis of the same points have been accepted by the DDA". It has been further mentioned therein, at the end of page no. 11/19 that "the demarcation report is based upon the three points (mustil ke patthar khasra no. 1295, 1362 gaon Kadipur and sehda patthar gaon kadipur Bhalaswa and Libaspur) are correct according to the revenue record".
11.5 It is important to mention here that the demarcation work was carried out with the most scientific method approved by the Anand Swaroop Tyagi Vs. The Wazirabad Co-operative Society Ltd. & Ors. Page 10 of 14 New CS No. 35160/16 Dated 22.04.2019 Old CS No. 82/14
concerned authority. With respect to this, in the internal diary of the DDA, at page 12/N it has been mentioned that "Nishan / sehda is correct according to revenue record through which in another cases also demarcation has been done which was accepted by DDA". At the end of the said page, it has been further mentioned that "the suit land falls in the khasra no. 877/1 min of village Haiderpur and it does not fall in the khasra no. 958 min of Bhalswa Jahangir Puri". It was further opined that there is no need of objection to demarcation by the DDA.
11.6 The above said nothings were duly admitted and proved by the DW1 i.e. Kanoongo. DW1 further deposed that he was appointed by Sh. Bhup Singh, Deputy Director (LM) NorthZone of DDA to participate in the said demarcation process. He also admitted that M/s N. K. Engineers had conducted the demarcation process in the present case. Even PW4 Sh. Jagbir Singh i.e. proprietor of N.K. Engineers, also proved the due execution of the order qua demarcation of the land in question. He proved the said demarcation report i.e Ex. PW4/2 bearing his signature at point A and B. On being crossexamined, he categorically denied the suggestion that points taken in the present case for the demarcation are not the admitted points of DDA, rather he further deposed that in the other demarcation, in case titled as Krishan Vs. DDA done by him, DDA has admitted the three points as correct and proper.
11.7 The said duly proved demarcation report reflects that Anand Swaroop Tyagi Vs. The Wazirabad Co-operative Society Ltd. & Ors. Page 11 of 14 New CS No. 35160/16 Dated 22.04.2019 Old CS No. 82/14
defendants are in possession of portion of Khasra which belongs to the plaintiff and the disputed flats were allegedly constructed over the land of the plaintiff, have been included in the allotment scheme of 2017. The defendant no. 2 has failed to prove it's defence that the land in question falls in Khasra no. 958 min of Village Bhalaswa Jahangirpuri which has already been acquired and not in Khasra no. 877/1 and 1049/1 of Village Haiderpur.
11.8 As plaintiff has successfully proved his case, therefore, the issue no. 1 and 2 are decided in favour of the plaintiff and against the defendant no. 2.
12. Issue no. (iii) Whether the suit is bad for want of statutory notice under Section 53 (b) of DD Act ? OPD 2 12.1 Preliminary objection was raised by the defendant no. 2/DDA that the present suit is not maintainable as no statutory notice as required u/s 53 (b) of DD Act, 1957 has been served upon it.
12.2 However, SubSection 3 of Section 53(b) of DD Act, itself provides an exception to the above provision as it lays down that, "nothing contained in subsection (1) shall be deemed to apply to a suit in which the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the institution of the suit."
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12.3 In the present case also, the relief sought is only the
injunction vide which the plaintiff has prayed that the defendant no. 2/DDA be restrained from carrying out any illegal construction on the plot in question by the defendant no. 2/DDA at the plot in question i.e. plot no. 17, BlockA in Khasra no. 877/1 and 1049/1, Ramgarh, Jahangirpuri, G. T. Karnal Road, Delhi33.
12.4 In view of the above, it is clear that Section 53 (b) of DD Act is not applicable in the present facts and circumstances, accordingly, the abovesaid issue is decided against the defendant no. 2/DDA and in favour of the plaintiff.
13. ISSUE No. IV. Whether the subject matter of the present suit is beyond the jurisdiction of this court ? OPD 2. 13.1 The onus to prove the abovesaid issue was upon the defendant no. 2, however, no evidence was led at all. Neither any arguments were address qua above. Therefore, the above said issue is decided in favour of the plaintiff and against the defendant no.
2.
14. RELIEF 14.1 The suit of the plaintiff is decreed and defendant no. 2, it's employees are restrained from carrying out any illegal construction Anand Swaroop Tyagi Vs. The Wazirabad Co-operative Society Ltd. & Ors. Page 13 of 14 New CS No. 35160/16 Dated 22.04.2019 Old CS No. 82/14 work on the plot in question and also restrained from disturbing the plaintiff from enjoying the possession of plot in question i.e plot no. 17, BlockA, in Khasra no. 877/1 and 1049/1, measuring 64.1" x 42.2", Ramgarh, Jahangir Puri, G.T. Karnal Road, Delhi110033 without due process of law. The defendant no. 2 is further directed to demolish the illegal construction and to remove all the building materials laid thereon and all other things which belong to defendant no. 2 from the plot bearing no. 17, BlockA in Khasra no. 877/1 and 1049/1, measuring 64.1" x 42.2", Ramgarh, Jahangir Puri, G.T. Karnal Road, Delhi110033.
15. No order as to costs.
16. Decree sheet be prepared accordingly.
17. File be consigned to record room after due compliance.
Announced in the Open Court on 22.04.2019.
(VANDANA) SCJcumRC (North), Rohini, Delhi/22.04.2019 Anand Swaroop Tyagi Vs. The Wazirabad Co-operative Society Ltd. & Ors. Page 14 of 14