Delhi District Court
Surendra Deo Gaur (Since Deceased) ... vs . on 24 October, 2019
Civ.DJ 613846/16
Surendra Deo Gaur (since deceased) through L.Rs. Vs.
Union of India and Ors.
IN THE COURT OF VIKAS DHULL: ADDITIONAL
DISTRICT JUDGE01, TIS HAZARI COURTS (WEST),
DELHI
Civ.DJ 613846/16
In the matter of :
Sh.Surendra Deo Gaur (since deceased)
through his Legal heirs
i. Smt.Vidhu Sharma
W/o Sh.Kishore Sharma
D/o Late Sh.Surendra Deo Gaur
R/o ABlock, House No. 31/32
Lali Pur Road, Ramnath City
Rajgarh, Jhansi, U.P.
ii. Smt.Anshu Sharma
W/o Sh.Ashok Sharma
D/o Late Sh.Surendra Deo Gaur
R/o H30D, Saket, New Delhi110017
iii. Smt.Anjali Gupta
W/o Late Sh.Arun Gupta
D/o Late Sh.Surendra Deo Gaur
R/o 25, Siri Fort Road, New Delhi
Page: 1/85
Civ.DJ 613846/16
Surendra Deo Gaur (since deceased) through L.Rs. Vs.
Union of India and Ors.
iv. Smt.Mukta Sharma
W/o Sh.Mauto Sharma
D/o Late Sh.Surendra Deo Gaur
R/o A1801, Tharwani Heights
Plot No.4, Sector18, Sanpada
Navi Mumbai400705
v. Smt.Poonam Sharma
W/o Sh.Sanjay Sharma
D/o Late Sh.Surendra Deo Gaur
R/o Alok Press, Talaiya Bhopal
vi. Sh.Anil Gaur
S/o Late Sh.Surendra Deo Gaur
R/o Plot No.1, Huda Heights
Near MLA Colony, Road No.12
Banjara Hills, Hyderabad500034
... Plaintiffs
VERSUS
1. Union of India
Through Secretary
Ministry of Law and Justice
Govt.of India, Shastri Bhawan
New Delhi.
Page: 2/85
Civ.DJ 613846/16
Surendra Deo Gaur (since deceased) through L.Rs. Vs.
Union of India and Ors.
2. Municipal Corporation of Delhi
Town Hall, Chandni Chowk, Delhi
Service to be effected through the Commissioner
3. Delhi Administration
5, Alipur Road, Delhi110054
Through Chief Secretary
4. Jai Dev Park House Owners
Welfare Association (Regd.)
Through its General Secretary
Sh.Om Prakash Goel
R/o 3/13, Jai Devi Park
Rohta Road, Delhi110026
5. Smt.Beena Dev Gaur
W/o Late Sh.Shashank Dev Gaur
R/o 3750, Gali Zamadar
Pahari Dhiraj, Near Bada
Delhi110006.
... Defendants
Date of institution of suit : 21.02.1990
Date on which judgment reserved : 03.10.2019
Date on which judgment pronounced : 24.10.2019
Page: 3/85
Civ.DJ 613846/16
Surendra Deo Gaur (since deceased) through L.Rs. Vs.
Union of India and Ors.
JUDGMENT
1. This is a suit for possession, permanent injunction and for recovery of mesne profits or in the alternative for recovery of Rs.76,99,417.40p./ filed by plaintiff against defendants.
2. The brief facts as mentioned in the plaint are that plaintiff and defendant no.5 (since deceased) now represented through his wife, had formed a Joint Hindu Family of which plaintiff was the karta.
3. Plaintiff and late defendant no.5 Sh.S.D.Gaur were the owners of land measuring 16.15 acres falling in Khasra No. 2434/236 and 238/2 village Page: 4/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
Basai Darapur, Delhi situated at Rohtak Road, Delhi within the limits of Municipal Corporation of Delhi.
4. It was decided by plaintiff to develop said land into plots for construction of building thereon. Accordingly, plaintiff as Karta of HUF submitted a layout plan, for the development of said land, for approval of defendant no.2. The said layout plan provided for plots, into which the land was proposed to be developed for the construction of buildings thereon and for the purpose of which said buildings were to be utilized, allotment of sites for streets, open spaces, parks etc.
5. The standing committee of defendant no.2 had sanctioned the layout plan on 01.04.1959 with Page: 5/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
three conditions i.e. no land to be sold until services are developed to the satisfaction of the Commissioner; (2) That the sanction given to the layout plan would lapse unless services are provided within a span of 12 months; and lastly, plaintiff was required to deposit security amount within 15 days of the sanction of layout plan.
6. The plaintiff had deposited the security amount with defendant no.2/MCD and had provided services as per layout plan. Thereafter, Town Planner of defendant no.2/MCD had vide its letter dated 20.01.1962 informed plaintiff regarding permission granted to carry out the building activities as per layout plan. Thereafter, plaintiff had sold about 100 plots and the persons, who had purchased the plots, had constructed their Page: 6/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
houses and had formed an Association by the name of Jai Dev Park House Owners Welfare Association which is defendant no.4 in the present suit.
7. It was further averred in the suit that defendant no.4 Association was acting contrary to the interest of plaintiff and defendant no.5 and colluded with defendant no.2 and had handed over six sites as per layout plan reserved for school, shops, community hall, park etc in the year 1978 wherein defendant no.2 had carried out construction in the form of School building, milk booth, police post and drinking water piau.
8. It was averred in the suit that defendant no.2 had no right, title or interest in the six sites marked A Page: 7/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
to F in the site plan marked Z without payment of cost and without acquiring the same.
9. It was averred in the suit that plaintiff and defendant no.5 had reserved sites marked A to F for the purpose of Higher Secondary School, recreation Hall, shops, open space/park etc. and there was no condition in the layout plan that plaintiff had to construct the same himself and plaintiff could not have sold the said sites to some other persons for the purpose of carrying out activities as per layout plan.
10. It was further averred in the suit that no relief is being claimed against defendant no.5 and he is only a proforma party as defendant no.5 had filed a suit for partition which is pending in the Page: 8/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
Hon'ble High Court of Delhi.
11. It was further averred that plaintiff and defendant no.5 are entitled to half share each and a decree by this court would be executable to the extent of half share each. Accordingly, in the suit, it was prayed that decree of possession be passed in favour of plaintiff and defendant no.5 and against defendants no.1 to 4 in respect of six sites shown as marked A to F in the site plan marked Z. A prayer was also made for passing a decree of mesne profits of Rs.11,74,487.40p.against defendants nos.1 to 4 or in the alternative, a decree for Rs.76,99,417.40p in favour of plaintiff and defendant no.5 and against defendants no.1 to 4 with regard to six sites.
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12. Plaintiff had also prayed for passing of decree of perpetual injunction in favour of plaintiff and defendant no.5 restraining defendants no.1 to 4 from selling, disposing of, alienating, using or parting with possession of any of the site mentioned from marked A to F in the layout plan.
13. Summons of the suit were issued to all the defendants. Thereafter, defendants had sought time to file written statement but despite grant of various opportunities, written statement was not filed on record by defendants.
14. Further, prior to filing of written statement by defendant no.5, he had expired. Thereafter, on an application filed by plaintiff under Order XXII rule 4 of the Code of Civil Procedure, 1908 Page: 10/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
(hereinafter referred to as CPC), his legal heirs were brought on record vide order dated 13.11.1995.
15. Thereafter, since defendants failed to file written statement and also chose not to appear, therefore, they were proceeded exparte vide order dated 19.08.1997.
16. The said exparte order was challenged by defendants no.2 and 4 by filing an application under Order IX Rule 7 CPC. The same was dismissed vide order dated 19.04.2001.
17. Thereafter, order dated 19.04.2001 was challenged by defendant no.2 before the Division Bench and vide order dated 11.09.2001, written Page: 11/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
statement of defendant no.2 was taken on record subject to cost.
18. However, defendant no.4 and other defendants did not challenge their exparte order and hence, their written statement was not taken on record.
19. In the written statement filed by defendant no.2, a preliminary objection was taken with regard to maintainability of the suit on the ground that after approval of layout plan, six sites vest in defendant no.2 free of cost and these sites are for the beneficial enjoyment of residents of colony.
20. Defendant no.2 also objected to the maintainability of suit being barred by law of Page: 12/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
limitation.
21. Defendant no.2 also objected to the maintainability of the suit on the ground of it being barred by the principle of res judicata, it being barred under Section 477 / 478 Delhi Municipal Corporation Act, 1957 (hereinafter referred to as DMC Act), suit being not properly valued for the purpose of court fees and jurisdiction, suit being bad for misjoinder of parties and lastly, on the ground that this court has no territorial jurisdiction to try this case as plaintiff had an efficacious remedy to file an appeal before Appellate Tribunal under Section 347B of the DMC Act.
22. On merits, defendant no.2 had admitted Page: 13/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
regarding approval of layout plan of Jai Dev Park Colony. However, it was submitted that after approval to carry out activities, plaintiff failed to comply with the conditions and backed out of his responsibility to develop services to the satisfaction of the Commissioner. It was submitted that services including community facility sites have been taken over by MCD in the interest of public/residents. It was submitted that defendant no.2/MCD acted in accordance with law in taking over the possession and maintaining the services.
23. It was further submitted that defendant no.2 had taken possession of common site meant for Higher Secondary School from defendant no.4 and handed over the same to the Director of Page: 14/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
Education on 09.07.1979.
24. It was further submitted that prior to the filing of the present suit, plaintiff had filed two suits bearing No. 580/84 and 581/84 with regard to sites reserved for recreation hall and other public open spaces. Both suits were dismissed on 28.05.1997. Hence the present suit is barred by principle of res judicata.
25. Defendant no.2 did not dispute that six sites were meant for school, recreation hall, park, shops etc. as per layout plan.
26. It was further submitted that plaintiff had no right, title or interest in the six sites after approval of his layout plan and the same vested in Page: 15/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
defendant no.2/MCD.
27. It was further submitted that plaintiff after selling the plots had backed out of his responsibility of maintaining services as per conditions of approval of layout plan. Thereafter, MCD had taken over the possession of various services of the colony.
28. Defendant no.2 denied regarding construction of milk booth, police post, drinking water piau or of having encroached any service lane.
29. Defendant no.2 had further submitted that a school has been constructed by the Delhi Government at site A and the same is functioning at present.
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30. It was further submitted that defendant no.2 had taken over the possession of five sites marked A to E in question as per layout plan and thus, possession of defendant no.2 is legal, valid and within its jurisdiction.
31. It was submitted that plaintiff is not entitled to any possession or compensation for the six sites. Accordingly, a prayer was made to dismiss the suit.
32. In the replication filed by plaintiff to the written statement of defendant no.2, all the averments as made in the plaint were reiterated and those stated in the written statement were denied.
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33. From the pleadings of parties, the following issues were framed vide order dated 20.02.2006:
(1) Whether this court has no jurisdiction to try the suit?
(2) Is the plaint liable to be rejected under Order VII Rule 11 CPC?
(3) Whether the suit is not properly valued for purposes of court fees and jurisdiction?
(4) Is the suit barred by res
judicata?
(5) Whether the sites in question
vest in defendant no.2 free of cost and the plaintiff cannot ask for possession?
(6) Is the suit not maintainable in view of Section 80 CPC and Section Page: 18/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
347B and 477/478 of the DMC Act?
(7) Is the suit barred by time? (8) Whether the defendants no.1 to
4 have legally taken possession of the sites marked A,B,C,D,E and F shown in plan marked Z and have dealt with those sites as lawful owners? OPP (9) If the issue no.8 is decided in favour of plaintiff, could the defendants take possession of those sites without payment of their costs? OPD (10) If the above issues are decided in favour of the plaintiff, are not the defendants no.1 to 4 liable to surrender vacant possession of those sites A to F to the plaintiff after demolition of the structures standing thereupon?
(11) Whether the plaintiff is entitled to recover a sum of Rs.65,24,930/ Page: 19/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
detailed in para 31 of the plaint in the alternative to the claim of possession against the defendant?
(12) Whether there was only excess open space measuring 1596 sq.yards? If so, its effect.
(13) Whether the defendants no.1 to 3 are bound to remove police post from the site shown "F" in plan marked Z?
(14) Whether the plaintiff is entitled to recover a sum of Rs.11,74,487.40p. on account of mesne profits?
(15) Whether the plaintiff is entitled to future mesne profits? If so, at what rate for what period?
(16) Is the plaintiff entitled to interest? If so, at what rate and on what amount?
(17) Is the plaintiff entitled to Page: 20/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
perpetual injunction as prayed for?
(18) Relief
34. At the stage of plaintiff's evidence, late plaintiff Sh.S.D.Gaur examined himself as PW1. No other witness was examined on behalf of plaintiff. Accordingly, the plaintiff's evidence was closed.
35. After the closure of plaintiff's evidence, plaintiff had filed an application under order XXIII Rule 1 CPC whereby he had sought to withdraw the part of his claim with regard to site F as shown in the layout plan Mark Z and said application was allowed vide order dated 23.07.2008 and the suit of the plaintiff was dismissed qua site F as per layout plan.
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36. Thereafter, the matter was posted for defence evidence. In defence evidence, only defendant no.2/MCD has lead evidence by examining DW Shamsher Singh. No other witness was examined on behalf of defendants. Accordingly, the defence evidence on behalf of defendant no.2/MCD was closed as remaining defendants are exparte
37. Thereafter, the matter was posted for final arguments.
38. I have heard Sh.S.K.Gupta and Sh.Nitin Ahlawat, Ld.counsels for plaintiff and Sh.Umesh Gupta, Ld.counsel for defendant no.2/MCD. I have also perused the material placed on record.
39. It was submitted by Ld.counsel for plaintiff Page: 22/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
that in the present case, it is an admitted fact that all the six common sites i.e. marked A to F as shown in the layout plan Ex.P2 were owned by plaintiff. Therefore, the short question involved in the present case is whether six common sites marked A to F could have vested in defendant no.2/MCD free of cost?
40. It was submitted that as per the defence taken up by defendant no.2/MCD in their written statement, plaintiff had no right, title or interest in the common sites marked A to F after the layout plan was approved and said six sites vest in the Corporation free of cost.
41. It was submitted that with regard to defence of defendant no.2/MCD, no provision of law of DMC Page: 23/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
Act or any other law has been brought on record by defendant no.2/MCD to show that common sites vest in defendant no.2/MCD free of cost.
42. It was further submitted that defendant no.2/MCD has relied upon the judgment of the Hon'ble Supreme Court of India delivered in Pt.Chet Ram Vashist vs Municipal Corporation Of Delhi, 1995 SCC (1) 47 to support their defence that the land vest free of cost in the Corporation but the said judgment is of no help to the case of defendant no.2/MCD as in para 6 of the said judgment, it was observed by the Hon'ble Supreme Court of India that "although Corporation has a right to manage the common land reserved for public purposes but there is no provision in the DMC Act or there is no principle Page: 24/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
of law whereby land for public purposes would automatically transfer free of cost to the Corporation."
43. It was further held in the said judgment that resolution of the standing committee of the Corporation that the land specified for public purposes like park, school shall vest in the Corporation free of cost was not in accordance with law. Therefore, in the said judgment also, the Hon'ble Supreme Court of India has held that land reserved by the coloniser for public purposes cannot automatically vest in the Corporation free of cost.
44. It was further submitted that the judgment of the Hon'ble Supreme Court of India delivered in Page: 25/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
Chet Ram's case (supra) was considered by our own Hon'ble High Court of Delhi in the matter of Sarita Gupta Vs. MCD, W.P.(C) 8859/2011 and vide judgment dated 18.09.2019, the Hon'ble High Court of Delhi has held that "land belonging to a private person can be taken away by the Corporation only if Corporation acquires the same by an agreement or under the Land Acquisition Act, after payment of requisite compensation.
45. It was further submitted that in the present case, common areas shown as Mark A to F in the layout plan Ex.P2 have not been acquired by defendant no.2/MCD by paying compensation to plaintiff, who is the owner of said land and, therefore, the same cannot vest in defendant no.2/MCD.
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46. It was further submitted that as per layout plan Ex.P2, the sites marked A to F are required to be used for specific purpose as per the layout plan but that does not mean that plaintiff has got no right to sell the land to some third party, who can maintain the six common sites marked A to F for the purpose of school, recreation hall, park etc.
47. It was further submitted that as per layout plan, it was the duty of plaintiff to have provided school, recreation hall, park etc. for the benefits of residents of Jai Dev Park colony, Delhi but that does not mean that in case, plaintiff has failed to provide services, then land would automatically vest free of cost in the defendant no.2/MCD.
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48. It was further submitted that right to property is a constitutional right and the same cannot be taken away by any party without following the due process of law i.e. by acquiring it after paying due compensation of the land to its recorded owner. In the present case, plaintiff is the recorded owner of six common sites marked A to F as per layout plan Ex.P2. Therefore, he has to be adequately compensated if defendant no.2/MCD intends to acquire the same and in case, defendant no.2 Corporation does not intend to acquire the same, then in the alternative, plaintiff be handed over the possession of the site so that he can develop the same personally for the intended purpose or can sell the same to some other person for developing the sites as per layout plan Ex.P2.
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49. It was submitted that even in this case, it is not proved on record that defendant no.2/MCD had legally taken over the sites marked A to E as per layout plan Ex.P2.
50. It was submitted that it is the defence of defendant no.2/MCD that they were handed over these sites marked A to E as per layout plan Ex.P 2 by defendant no.4. However, defendant no.4 has not been examined in this case as a witness to prove the handing over of these sites marked A to E by defendant no.4 to defendant no.2/MCD. Therefore, defendant no.2/MCD has failed to prove that they had got possession of these sites marked A to E as per layout plan Ex.P2 in a lawful manner from defendant no.4. Accordingly, Page: 29/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
a prayer was made to decree the suit.
51. On the other hand, Ld.counsel for defendant no.2/MCD has opposed the plea of plaintiff that six common sites marked A to F do not vest in defendant no.2/MCD unless they acquire the same by paying adequate compensation to the plaintiff.
52. It was submitted that as per judgment of the Hon'ble Supreme Court of India delivered in Pt.Chet Ram's case (supra), if sites were reserved by the coloniser/owner for public purposes and if the same are approved by defendant no.2/MCD in the layout plan, then the owner/coloniser ceases to have any right to sell the common sites reserved for public purposes Page: 30/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
and he remains the residual owner and MCD has a right to maintain the same as trustee on behalf of residents of the locality. It was further submitted that ratio of Pt.Chet Ram's case (supra) has been followed by the Hon'ble Delhi High Court in the judgments delivered in (1) North Delhi Municipal Corporation Vs. Prashant Narula and Ors., RSA 297/15; and (2) South Delhi Municipal Corporation Vs. Pawan Garg and Ors., LPA 369/16 decided on 24.04.2019.
53. It was further submitted that in the present case, defendant no.2/MCD is not claiming the ownership rights of six sites Mark A to F and is only managing the same for the public purposes as per the layout plan.
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54. It was further submitted that layout plan was approved by MCD way back in 1959 but till 1978, when defendant no.2/MCD took over the possession of these common sites, the same were lying vacant and plaintiff had not provided the promised services as per layout plan Ex.P2.
55. It was further submitted that without there being school, recreation hall and park etc., residents of Jai Dev Park Colony found it very difficult to live in the said Colony and, therefore, as per their request, common sites were taken up by MCD for maintaining the same.
56. It was further submitted that if plaintiff was serious to provide these services as per layout Page: 32/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
plan Ex.P2, then he had sufficient time to provide the same from 1959 till 1978 but the very fact that no such public utilities were provided by plaintiff, it shows that he had failed to provide services as per layout plan to the residents of the Jai Dev Park Colony and he had no interest left in the common sites for development after selling the plots.
57. It was further submitted that plaintiff by promising six common sites for public purposes in a way was able to sell his plot at higher price and therefore, the cost of common sites already stand recovered by plaintiff. Accordingly, a prayer was made to dismiss the suit.
58. I have considered the rival submissions made Page: 33/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
by respective parties and have carefully perused the record and the evidence lead on record by parties.
59. My findings on various issues is as follows: Issues no.1 and 6
1. Whether this court has no jurisdiction to try the suit?
6. Is the suit not maintainable in view of Section 80 CPC and Section 347B and 477/478 of the DMC Act?
Since both these issues are interconnected, therefore, they are being taken up together for decision.
60. On the said issues, both parties have lead no arguments. However, I have carefully perused the Page: 34/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
pleadings of parties and from Written Statement of defendant no.2/MCD, jurisdiction of this court to try the suit has been challenged on the ground of it being barred under Section 347B of the DMC Act.
61. It was submitted in the written statement of defendant no.2/MCD that in the present case, dispute is regarding conditions of approval of layout plan by defendant no.2/MCD and appropriate and efficacious remedy available to plaintiff was of filing an appeal before the Appellate Tribunal as per Section 347B of the DMC Act. Therefore, the present court does not have the territorial jurisdiction to try the present suit.
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62. The said objection taken by defendant no.2/MCD in the written statement deserves to be rejected. The reason for the same is that I have carefully perused the pleadings of parties and from the same, dispute which has come on record is not regarding the conditions of approval of layout plan Ex.P2.
63. The dispute in the present case pertains as to whether the six common sites marked A to F as shown in the layout plan Ex.P2 reserved for school, recreation hall, parks, shops etc. could have been taken over by defendant no.2/MCD free of cost even though the same belonged to plaintiff and whether plaintiff was entitled to possession of these sites or in the alternative for compensation equivalent to the market value of Page: 36/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
these six common sites.
64. As per Section 347B of the DMC Act read with Section 347E, jurisdiction of the civil courts is barred only with respect to those matters which could have been appealed before the Appellate Tribunal as per Section 347B of the DMC Act.
65. I have carefully perused the grounds of appeal provided under Section 347B of DMC Act and there is no ground providing for appeal before Appellate Tribunal, MCD relating to possession of common sites by MCD free of cost or in the alternative for nonpayment of compensation with regard to common sites.
66. Therefore, the present suit filed by plaintiff for Page: 37/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
possession with regard to six common sites or in the alternative for compensation and mesne profits is very much maintainable before this court and is not barred under Section 347B read with Section 347E of the DMC Act.
67. The second ground on which maintainability of the suit was challenged by defendant no.2/MCD was on the ground of nonissuance of notice under Section 80 CPC and Section 478 of the DMC Act.
68. In this regard, in the plaint, it is specifically mentioned that prior to the filing of the suit, defendant no.2/MCD was served with notice under Section 478 of the DMC Act. Even in his evidence, plaintiff had deposed to the said effect Page: 38/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
and has even filed on record notice dated 04.08.1989 Ex.P19 to have been issued to defendant no.2/MCD under Section 478 of DMC Act.
69. The defendant no.2/MCD while cross examining PW1 had themselves relied upon said notice Ex.P19.
70. In the entire cross examination of PW1, it was never suggested to PW1 that notice Ex.P19 was never received by defendant no.2/MCD.
71. Further, I have carefully perused the notice dated 04.08.1989 Ex.P19 and since the same clearly mentions the cause of action, nature of relief sought and the amount of compensation Page: 39/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
claimed as well as address of plaintiff and there being an averment in para 46 of the plaint that notice under Section 478 of DMC Act has been served upon defendant no.2/MCD, therefore, compliance of Section 478 of DMC Act was duly made. Therefore, the present suit is maintainable against defendant no.2/MCD. Both these issues are decided, accordingly against defendant no.2/MCD.
72. Issues No.2 and 52. Is the plaint liable to be rejected under Order VII Rule 11 CPC?
5. Whether the sites in question vest in defendant no.2 free of cost and the plaintiff cannot ask for possession?
Since both these issues are interconnected, therefore, they are taken up together for decision.
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73. On these issues also, neither parties had lead any arguments. However, I myself have carefully perused the pleadings of parties.
74. The defendant no.2/MCD has taken an objection that the plaint filed by plaintiff is liable to be rejected as no cause of action arose in favour of plaintiff.
75. It was submitted by defendant no.2/MCD in this regard that vide Resolution dated 01.04.1959 Ex.P1 of the Standing Committee of defendant no.2/MCD, approving the layout plan of Jai Dev Park Colony, a condition was imposed that all the public utility sites vest in MCD free of cost and since said condition was never challenged by Page: 41/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
plaintiff, therefore, he had ceased to have any right, title or interest in the common sites marked A to F of the layout plan Ex.P2 and, therefore, there was no cause of action for the plaintiff to have filed any suit or in the alternative for compensation.
76. I have carefully perused the Resolution dated 01.04.1959 Ex.P1 passed by the Standing Committee of the MCD sanctioning the layout plan of Jai Devi Park Ex.P2 and in Ex.P1, there is no such condition that common utility sites marked A to F would automatically vest in defendant no.2/MCD free of cost.
77. Even the witness of defendant no.2/MCD i.e. DW Sh. Shamsher Singh when confronted with Page: 42/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
Ex.P1 has admitted in his cross examination that there was no condition, while approving the layout plan of Jai Dev Park Colony, that common utility sites would vest in MCD free of cost.
78. Further, DW Sh.Shamsher Singh has also admitted in his cross examination that public utility sites were owned by plaintiff. Therefore, plaintiff did have a cause of action to file the present suit for possession or in the alternative to claim compensation against defendant no.2/MCD and whether the plaintiff is able to prove his entitlement to possession or to compensation will depend upon the outcome of trial but it cannot be said that plaintiff did not have any cause of action to file the present suit and plaint was liable to be rejected under Order VII Rule 11 CPC. This issue Page: 43/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
is decided accordingly.
79. Issue No.3 Whether the suit is not properly valued for purposes of court fees and jurisdiction?
On this issue also, neither of the parties have lead any arguments.
80. I have carefully perused the pleadings of parties and in the plaint, plaintiff has given a specific detail as to how he has arrived at the valuation of six common sites and has accordingly, valued the suit and has paid appropriate court fees on the same.
81. Although defendant no.2 has taken an objection in its written statement that suit has not Page: 44/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
been properly valued for the purpose of court fees and jurisdiction but no evidence has been lead on record by defendant no.2/MCD to show that the valuation arrived at by plaintiff is not proper valuation with regard to six common sites marked A to F and the market value of these sites was much more than what has been stated by the plaintiff. This issue is decided, accordingly.
82. Issue No. 4Is the suit barred by res judicata?
On this issue also, no arguments were lead by either of the parties. However, I have carefully perused the pleadings of parties and an objection has been taken by defendant no.2/MCD in its written statement that suit is barred by the principle of res judicata as two previous suits Page: 45/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
filed by plaintiff bearing No. 580/84 and 581/84 on the same subject matter and between the same parties, have already been dismissed on 28.05.1997 and, therefore, the present suit is not maintainable being barred by principle of res judicata.
83. In order to prove their defence, defendant no.2/MCD had produced certified copies of suits bearing no. 580/84 and 581/84 which are Ex.DW2/4 (colly).
84. Plaintiff as PW1 admitted that these two suits were dismissed on 28.05.1997 and PW1 also deposed on oath that these two suits were filed by him with regard to encroachments on some of the common sites marked A to F. Page: 46/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
85. I have carefully perused the document of defendant no.2/MCD i.e. Ex.DW2/4 (colly) and both the said suits were for perpetual injunction and as per order dated 28.05.1997, both the said suits were dismissed in default on account of non appearance of plaintiff.
86. For the applicability of principle of res judicata, the previous suits should have been between the same parties, on the same cause of action and the suit should have been finally heard and decided on merits by the court of competent jurisdiction as per Section 11 of CPC.
87. Although defendant no.2/MCD has not filed on record the complete suits for perpetual injunction Page: 47/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
filed by plaintiff bearing No. 580/84 and 581/84, part of Ex.DW2/4 (colly), therefore, this court is unable to state as to what was the cause of action and the nature of relief sought by plaintiff in the previous suit. However, from the title of suits as is evident from Ex.DW2/4 (colly) and having regard to the evidence lead on record by plaintiff, it is apparent that suits were filed for perpetual injunction regarding some of the encroachments of common sites marked A to F of Ex.P2. Therefore, the said suits part of Ex.DW2/4 (colly) were not filed on the same cause of action which is in the present case i.e. with regard to relief of possession and compensation.
88. Secondly, as per Order dated 28.05.1997 part of Ex.DW2/4 (colly), suits bearing no. 580/84 Page: 48/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
and 581/84 have not been decided on merits and have been dismissed in default on account of non appearance of plaintiff.
89. Therefore, as per Section 11 CPC, since said suits Ex.DW2/4 (colly) have not been heard and finally decided by competent court and even issue in the said suits was not the same as in the present suit, therefore, Section 11 CPC has got no applicability and the present suit filed by plaintiff is not barred by the principle of res judicata. This issue is decided, accordingly.
90. Issue No. 7Is the suit barred by time?
On this issue also, no arguments were lead by either of the parties.
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91. I have carefully perused the pleadings of parties. An objection has been taken by defendant no.2/MCD that the suit is barred by limitation as the same has been filed after 12 years of defendant no.2/MCD taking over the sites.
92. As per the written statement of defendant no.2/MCD, five common sites marked A to E were handed over to them on 22.03.1978.
93. Further, as per averments made in the plaint, plaintiff came to know for the first time regarding construction being carried out at site A in the month of April, 1979. Therefore, if the period of limitation for possession is counted from April, Page: 50/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
1979, therefore, the present suit filed on 21.02.1990 is well within the period of limitation of 12 years.
94. Even assuming that plaintiff did not come to know about construction in the month of April, 1979, then also as per own case set up by defendant no. 2/MCD, they had taken over the sites on 22.03.1978 and period of 12 years counted from 22.03.1978 expires on 21.03.1990 and the present suit filed on 21.02.1990 is well within limitation. This issue is decided accordingly.
95. Issue No.12 Whether there was only excess open space measuring 1596 sq.yards? If so, its effect.
As per the case set up by plaintiff, the common Page: 51/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
site at point E in the layout plan Ex.P2 was meant for a park having an area of 399 sq.yards. However, the area of site at point E as per Ex.P2 is 1995 sq.yards and, therefore, the excess area of 1596 sq.yards belongs to plaintiff which has been encroached upon and taken possession of by defendants no.2 to 4.
96. As per the stand of defendant no.2/MCD, there is nothing mentioned in the Resolution dated 01.04.1959 Ex.P1 that plaintiff was supposed to leave land measuring 399 sq.yards for the purpose of park.
97. It was further stated that the site marked E as per layout plan Ex.P2 is being used as a park by residents of Jai Dev Park Colony and the same is Page: 52/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
being maintained by defendant no.2/MCD.
98. It was further submitted that at the time of approving layout plan Ex.P2, total land shown by plaintiff to be owned by him was 16.15 acres and no additional land was claimed by plaintiff.
99. Therefore, since plaintiff was asserting excess area of 1596 sq.yrds land at point E as per layout plan Ex.P2, the onus was upon plaintiff to have proved the same.
100. The plaintiff has himself relied upon the Resolution dated 01.04.1959 Ex.P1 and the said document Ex.P1 do not specifically mention that plaintiff was supposed to leave plot of 399 sq.yards as open space at point E as per layout Page: 53/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
plan Ex.P2.
101. Further, I have carefully perused the layout plan Ex.P2 which has been filed on record by plaintiff himself and in the said document Ex.P2, there is no mention about site at point E being of 399 sq.yards.
102. On the contrary, Ex.P2 mentions that total area of land was 16.15 acres out of which 7.62 acres was meant for residential plots, 3.34 acres was meant for public amenities which includes public open space, higher secondary school, recreation hall and shops and 5.19 acres was meant for building roads. If said area of 7.62 acres, 3.34 acres and 5.19 acres is added then total comes to 16.15 acres.
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103. Further, in the Resolution dated 01.04.1959 Ex.P1 or in the layout plan Ex.P2, it is not specified as to what was the area of open space at site E as per layout plan Ex.P2.
104. Therefore, on what basis plaintiff has claimed that the area of site E is 1996 sq.yards, has not been established on record.
105. Further, as per layout plan Ex.P2 which is the document of plaintiff himself, total area left for the public amenities is 3.34 acres in which high school, open space, park, shops etc. was to be provided.
106. Therefore, it was for the plaintiff to have Page: 55/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
demonstrated that the area left for public amenities of 3.34 acres was not 3.34 acres but was more than that. However, no such evidence has been lead on record by plaintiff.
107. Further, as per Resolution dated 01.04.1959 Ex.P1, the total area left for parks and open space was 1.32 acres which included area provided for recreation hall as recreation hall was not required since the population was less than the prescribed number.
108. Further, as per case of plaintiff, site marked B was meant for recreation hall and sites marked C,D and E were meant for parks/open spaces. Therefore, it was for the plaintiff to have proved on record that the total area of 1.32 acres i.e. for Page: 56/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
sites marked B to E was much more than 1.32 acres and it was having an excess area of 1596 sq.yards in the site E of Ex.P2.
109. However, no such evidence was led on record by the plaintiff. Therefore, plaintiff has failed to prove that site at point E of layout plan Ex.P2 was having a total area of 1995 sq.yards whereas plaintiff was required to provide open space of 399 sq.yards only.
110. Further, as per layout plan Ex.P2, which is a document filed by plaintiff himself, the entire land of 16.15 acres has been clearly demarcated for roads, plots and public amenities and there is nothing in document Ex.P2 to support that site at point E of layout plan Ex.P2 was having an Page: 57/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
excess area of 1596 sq.yards.
111. Therefore, plaintiff has failed to prove that any excess area was there at site E of 1596 sq.yards which belongs to plaintiff. This issue is accordingly, decided against plaintiff and in favour of defendant.
112. Issue No.13 Whether the defendants no.1 to 3 are bound to remove police post from the site shown "F" in plan marked Z?
The onus to prove this issue was upon the plaintiff as plaintiff had asserted that encroachment at site F has been made by erecting a police post.
113. The said issue has become infructuous as Page: 58/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
plaintiff had withdrawn his claim with regard to site F as per layout plan Ex.P2 by filing an application under Order XXIII Rule 1 CPC which was allowed vide order dated 23.07.2008 and claim of plaintiff with regard to site F was dismissed. Even otherwise, it has come in the cross examination of PW1 that there exists no police post at site F of layout plan Ex.P2.
114. Issues No.8 to 11 and 14 to 17.
8. Whether the defendants no.1 to 4 have legally taken possession of the sites marked A,B,C,D,E and F shown in plan marked Z and have dealt with those sites as lawful owners? OPP
9. If the issue no.8 is decided in favour of plaintiff, could the defendants take possession of those sites without payment of their costs? OPD Page: 59/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
10. If the above issues are decided in favour of the plaintiff, are not the defendants no.1 to 4 liable to surrender vacant possession of those sites A to F to the plaintiff after demolition of the structures standing thereupon?
11. Whether the plaintiff is entitled to recover a sum of Rs.65,24,930/ detailed in para 31 of the plaint in the alternative to the claim of possession against the defendant?
14. Whether the plaintiff is entitled to recover a sum of Rs.11,74,487.40p. on account of mesne profits?
15. Whether the plaintiff is entitled to future mesne profits? If so, at what rate for what period?
16. Is the plaintiff entitled to interest? If so, at what rate and on what amount?
17. Is the plaintiff entitled to perpetual injunction as prayed for?
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Issues no.8 to 11 and 14 to 17 are being taken up together for decision as they are inter connected.
115. In the present case, admitted facts which have come on record in the evidence of PW1 as well as by way of document are that plaintiff had submitted the layout plan of the colony now known as Jai Dev Park Colony for the purpose of developing colony on 16.15 acres of land.
116. The ownership of plaintiff with regard to 16.15 acres land is also recorded in the Resolution dated 01.04.1959 Ex.P1 and even DW Sh.Shamsher Singh in his cross examination has admitted the ownership of plaintiff.
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117. It is also admitted by parties that six common sites in question i.e. marked A to F of layout plan Ex.P2 were left by plaintiff for the purpose of community service facility as admitted by plaintiff in his cross examination.
118. It was also admitted by PW1 in his cross examination that common sites of layout plan Ex.P2 were handed over by house and plot holders to defendant no.2/MCD.
119. It is also admitted by plaintiff in his cross examination that he was required to provide space as per layout plan Ex.P2 and he also admitted that no park was developed by him.
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120. It is also admitted by defendant no.2/MCD's witness DW Sh.Shamsher Singh in his cross examination that there was no condition mentioned in the Resolution dated 01.04.1959 Ex.P1 regarding handing over the sites to defendant no.2/MCD free of cost.
121. It was also admitted by plaintiff that at site marked A, a school is being run by defendant no.2/MCD and sites marked B to E are open spaces which are in possession of defendant no.2/MCD.
122. Having regard to the aforementioned admitted facts which have come on record and the documents Ex.P1 and Ex.P2, the only issue which is required to be decided is whether Page: 63/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
plaintiffs have right, title or interest in the common sites marked A to E (the case regarding site F already stands dismissed vide order dated 23.07.2008) and whether they can claim possession of these sites or in the alternative compensation from defendant no.2/MCD in this regard.
123. It was submitted by ld.counsel for plaintiffs that since ownership of sites marked A to E of plaintiff is not disputed by defendant no.2/MCD and said sites do not vest free of cost in the defendant no.2/MCD, as held in judgment of the Hon'ble Supreme Court of India delivered in Pt.Chet Ram's case (supra) relied upon by defendant no.2/MCD, therefore, defendant no.2/MCD cannot lay ownership over these sites Page: 64/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
marked A to E of layout plan Ex.P2 without compensating the plaintiff.
124. In support of his contention, plaintiff has relied upon the judgment of the Hon'ble High Court of Delhi delivered in Sarita Gupta's case (supra).
125. I have carefully perused the judgment of the Hon'ble High Court of Delhi delivered in Sarita Gupta's case (supra) and in the said judgment, the question was whether MCD could have acquired a plot belonging to the petitioner for the purpose of widening of road without acquiring the said land and without paying any compensation to the owner.
126. The Hon'ble High Court of Delhi in the said Page: 65/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
judgment came to the conclusion that decision to widen the road from 65 feet to 100 feet was taken up by MCD after regularization of unauthorized colony by the name of Friends Enclave and, therefore, the plot of the petitioner, which was required for widening of road could not have been taken without acquisition and without compensation. Accordingly, respondent/Corporation was directed to handover the land of the petitioners back to them.
127. However the said judgment cited by Ld.counsel for plaintiff is not applicable to the facts of the present case as in the present case, defendant no.2/MCD never intended to built any school/park in Jai Dev Park Colony by acquiring any land belonging to plaintiff.
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128. The facts which have come on record shows that plaintiff voluntarily put restriction regarding use of his land at site marked A to E of Ex.P2 for community purposes i.e. school, park, shops etc. and on the basis of layout plan Ex.P2 submitted by plaintiff to defendant no.2/MCD, the same was approved vide Resolution dated 01.04.1959 Ex.P 1 by defendant no.2/MCD.
129. Therefore, the facts of the present case are different from what was there before the Hon'ble High Court of Delhi in Sarita Gupta's case (supra) and, therefore, the said judgment is not applicable to the facts of the present case.
130. The facts of the present case are squarely Page: 67/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
covered by the judgment of the Hon'ble Supreme Court or India delivered in Pt.Chet Ram's case (supra) which was followed by our own Hon'ble High Court of Delhi in North Delhi Municipal Corporation's case (supra) and South Delhi Municipal Corporation's case (supra).
131. In the matter of Pt.Chet Ram's case (supra), the owner of the land had carved out a colony by the name of Ganga Ram Vatika wherein open space for park and school was left by him in the layout plan and the same was approved by MCD. The Hon'ble Supreme Court of India in para 6 of the said judgment has observed as follows:
6. "Reserving any site for any street, open space, park, school etc. in a layout plan is normally a public purpose as it is inherent in such reservation that it shall be used by the public in general. The effect of such Page: 68/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
reservation is that the owner ceases to be a legal owner of the land in dispute and he holds the land for the benefit of the society or the public in general. It may result in creating an obligation in nature of trust and may preclude the owner from transferring or selling his interest in it. It may be true as held by the High Court that the interest which is left in the owner is a residuary interest which may be nothing more than a right to hold this land in trust for the specific purpose specified by the coloniser in the sanctioned layout plan. But the question is, does it entitle the Corporation to claim that the land so specified should be transferred to the authority free of cost. That is not made out from any provision in the Act or on any principle of law. The Corporation by virtue of the land specified as open space may get a right as a custodian of public interest to manage it in the interest of the society in general. But the right to manage as a local body is not the same thing as to claim transfer of the property to itself. The effect of transfer of the property is that the Page: 69/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
transferor ceases to be owner of it and the ownership stands transferred to the person in whose favour it is transferred. The resolution of the Committee to transfer land in the colony for park and school was an order for transfer without there being any sanction for the same in law."
132. The Hon'ble High Court of Delhi in the matter of North Delhi Municipal Corporation's case (supra) after relying upon the judgment of the Hon'ble Supreme Court of India delivered in Pt.Chet Ram's case (supra) has held in para 16 as follows:
16. "The emphasized portion of the aforesaid paras do show that the ownership of land which is part of a developed colony and with respect to which a lay out plan is sanctioned under Section 313 of the Delhi Municipal Corporation Act, ownership thereof in the strict sense of the term will not rest with the appellant/MCD but will Page: 70/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
continue to vest with the owners. However, the legal owner is only a trustee of the said land but administration of the said land will vest in the corporation for its management and use. The emphasized portion of para 6 of the judgment in the case of Pt. Chet Ram Vashist (supra) clearly holds that the effect of an area being reserved for a street or an open space or a park etc in a lay out plan for a public purpose results in the owner ceasing to be the owner of such land and the legal owner though formally not divested of ownership will have an obligation in the nature of trust because the land is for the benefit of the public in general and thereby the owner is precluded from transferring or selling his interest in the same. The judgment in the case of Pt. Chet Ram Vashist (supra) is directly under the provisions of the Delhi Municipal Corporation Act which applies to the suit land and which suit land forms part of a regularized colony with respect to which lay out plans have been approved under Section 313 of the Delhi Municipal Page: 71/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
Corporation Act by the appellant/MCD in terms of its resolutions of the years 1960 and 1964 Ex.DW1/3 to Ex.DW1/6.
Therefore, in view of the ratio of the judgment of the Supreme Court in the case of Pt. Chet Ram Vashist (supra) even if for the sake of arguments, respondent nos.1 and 2/plaintiffs are taken as owners of the suit land, even then, they do not have any rights in the same for selling or transferring of the same or using the same because the management and use thereof will vest in the corporation for the public purposes as stated in the lay out plan which is approved under Section 313 of the Delhi Municipal Corporation Act. I therefore hold that even if the respondent nos.1 and 2/plaintiffs technically are owners, however they are only owners in trust for the public in general and the appellant is entitled to manage and use the land and that the respondent nos.1 and 2/plaintiffs cannot seek any right or benefit in the suit land for selling or transferring the same or making any construction on the same as the owners."
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133. The same view was taken up by the Hon'ble High Court of Delhi in South Delhi Municipal Corporation's case (supra) after relying upon the judgment of the Hon'ble Supreme Court of India delivered in Pt.Chet Ram's case (surpa) in para 73 which reads as under: -
73. "Once the colonizer parted with the properties, and at a time, when the use of the plot was "fixed" or had crystallized as a public purpose, the question of its transfer in 1994 could not have arisen. As clearly held in Pt. Chet Ram (supra), the residual ownership did not extend to the holder of title the right to transfer the land. Here, not only did the colonizer transfer the lands at a time, when the use continued to remain unaltered, it appears to have conferred through such transactions, rights it never had nor could claim.
Moreover, it is one thing to say that the SDMC can, or may approve a change of layout; it is another thing entirely to say Page: 73/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
that it can be compelled to do in judicial review. During the hearing, no rule of law or binding authority was shown to the court, in support of the submission that a writ or direction of the nature sought could be given under Article 226 of the Constitution of India."
134. From the aforementioned judgments, it is clear that once the colonizer has reserved any site for any street, open space, school, park etc. in a layout plan, then such reservation means that these sites have been left for public purposes and the effect of such reservation is that the owner ceases to be a legal owner of the land in dispute and he holds the land for the benefit of the society or the public in general. The owner owns the land as trustee and he is precluded from selling, transferring his right in such land which is meant for public purposes.
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135. Further, the Corporation by virtue of land specified for public purposes may get a right as custodian of public interest to manage it in the interest of society in general.
136. In the light of aforesaid discussion, although plaintiffs are the owners of common sites but they are holding the said common sites as trustees and they have no right to transfer or sell the same.
137. Another reason for plaintiffs losing the right over the common sites marked A to E in layout plan Ex.P2 is the fact that as per evidence which has come on record, plaintiff had got a right to sell the residential plots in 1962 on the basis of layout plan Ex.P2.
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138. After the plots were sold and houses were built by purchasers, they were entitled to public amenities in the form of school, recreation hall, parks and shops as per layout plan Ex.P2.
139. However, the same was not provided by plaintiff and this fact is also admitted by plaintiff in his cross examination.
140. The common sites marked A to E as per layout plan Ex.P2 were taken over by defendant no.2/MCD on 22.03.1978 i.e. after 16 years of plaintiff getting right to develop public amenities as per layout plan Ex.P2.
141. Plaintiff has not been able to provide any good Page: 76/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
reason for not providing the public amenities to the residents of Jai Dev Park Colony for around 16 years. Further, to provide aforementioned public amenities, plaintiff would have incurred expenses in providing of school, parks, shop, recreation hall etc. and by not providing the same, plaintiff was able to save money, which was spent by defendant no.2/ MCD by building school and parks. Therefore, the residents of Jai Dev Park Colony were deprived of the public amenities for around 16 years and, therefore, they had ultimately transferred the rights to manage these common sites to defendant no.2/MCD for the purpose of management so that residents of the Jai Dev Park Colony can get the public amenities which were required to be provided by the plaintiff.
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142. Another reason for plaintiffs not having the right as owners to sell common sites in question is the fact that at the time of selling of 110 residential plots to the prospective customers, plaintiff must have promised to the prospective customers that he will be providing school, parks, shops, recreation hall etc. as per layout plan Ex.P 2 approved by defendant no.2/MCD.
143. It is a matter of common knowledge that when such public amenities are promised by a builder or coloniser while developing a colony, then naturally he gets a good price of the plots and where no such public amenities are provided, then builder/coloniser is unable to fetch good price of plots proposed to be sold.
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144. Therefore, in the present case, plaintiff on the strength of providing public amenities like parks, shops, recreation hall, school etc. was able to sell 110 plots at much higher price which he would not have got in case common sites were not proposed to be provided by plaintiff.
145. Therefore, the cost of common sites voluntarily left by plaintiff stands recovered by plaintiff by selling residential plots at much higher price. Therefore, plaintiff has got no saleable rights in common sites marked A to E reserved for public amenities.
146. Therefore, in the light of aforementioned discussion, plaintiff has got no right, title or Page: 79/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
interest in the common sites marked A to E in the layout plan Ex.P2 to claim possession of the same or to demand compensation or mesne profits as defendant no.2/MCD has a right to manage and use the common sites for the public purposes as per layout plan Ex.P2.
147. The next point which was required to be decided is whether the transfer of common sites to defendant no.2/MCD was legal or not?
148. It was contended by ld.counsel for plaintiff that in the present case, defence of defendant no.2/MCD is that all the six common sites marked A to F in the layout plan Ex.P2 were handed over to defendant no.2/MCD by the residents of Welfare Association of Jai Devi Park Colony i.e. Page: 80/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
defendant no.4.
149. However, in the present case, defendant no.4 is exparte and they have not been examined as witness in the present case to prove the said defence. Therefore, there is nothing on record to show that defendant no.2/MCD has taken over the common sites marked A to E in layout plan Ex.P2 from defendant no.4. Hence, the possession of defendant no.2/MCD is illegal.
150. The said contention of ld.counsel for plaintiff is required to be rejected as the factum of handing over of common sites by defendant no.4 to defendant no.2/MCD has been admitted by PW1 in his cross examination.
Page: 81/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
151. Even otherwise, defendant no.2/MCD being the custodian of public interest has a right to manage the common areas meant for public purposes in the public interest.
152. Therefore, plaintiff has miserably failed to prove that defendant no.2/Corporation has not taken over the common sites marked A to E in the layout plan Ex.P2 legally and they are liable to surrender the vacant possession of the same to plaintiff.
153. Plaintiff has also miserably failed to prove his entitlement of compensation of Rs.76,99,417/ from defendant no.2/MCD with regard to common sites marked A to E as per layout Plan Ex.P2.
Page: 82/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
154. Since plaintiff has failed to prove any right to manage all these common sites marked A to E in layout plan Ex.P2, therefore, he is not entitled to any kind of injunction against defendants. Therefore, all the aforementioned issues are decided in favour of defendants and against plaintiff.
155. Issue No. 18Relief.
In the light of my findings given to issues no. 1 to 4 and 8 to 17, the suit of plaintiff is dismissed. No order as to costs. Decree sheet be prepared accordingly.
156. Before parting with the judgment, it is relevant Page: 83/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
to deal with the application under Section 151 CPC filed by defendant no.2/MCD in I.A. No. 5034/2008 which was disposed of vide order dated 23.07.2008.
157. The application of defendant no.2/MCD under Section 151 CPC was with regard to application of doctrine of 'lis pendens' with regard to site marked F, which the plaintiff had sold vide two registered sale deeds in the month of August, 2005 i.e. during the pendency of this case without taking prior permission of this court.
158. The doctrine of 'lis pendens' as provided in Section 52 of the Transfer of Property Act, 1882 means that if any property which is subject matter of the suit is sold during the pendency of the suit, Page: 84/85 Civ.DJ 613846/16 Surendra Deo Gaur (since deceased) through L.Rs. Vs. Union of India and Ors.
then such sale shall be subject to final outcome of the suit.
159. In the present case, no final decision can be given with regard to site marked F in layout plan Ex.P2 as suit qua site marked F was dismissed vide order dated 23.07.2008. Therefore, the question of application of doctrine of 'lis pendens' does not arise in this case as suit of plaintiff qua site marked F already stood dismissed and there is no occasion for passing of any decision with regard to site marked F as per layout plan Ex.P2.
160. File be consigned to record room.
VIKAS Digitally signed by
VIKAS DHULL
DHULL Date: 2019.10.25
12:37:32 +0530
Announced in the open court (Vikas Dhull)
Dated: 24.10.2019 ADJ01, THC, West, Delhi
Page: 85/85