Delhi District Court
Dr. Mrs. Anoop Dahiya vs Mcd on 12 March, 2024
IN THE COURT OF MS. NEHA MITTAL,
ASCJ-JSCC-GJ, NORTH -WEST DISTRICT
ROHINI COURTS, DELHI
Suit No. 58915/16
1.Dr. Mrs. Anoop Dahiya, W/o Dr. Mahendra Singh Dahiya
2. Dr. Mahendra Singh Dahiya S/o Late Sh. Mohan Lal Both R/o H. No. 18, Shanti Mohan Hospital, Nai Basti Lampur Road, (Near railway crossing), Bankner, Narela, Delhi-110040 ......Plaintiffs Versus
1. MCD Through its Commissioner, Civic Centre, Minto Road, Delhi-110002 ......Defendant No.1
2. Land Acquisition Collector, North-West, Office at Kanjhawala, Delhi ...Defendant no.2.
Date of Institution : 07.03.2011
Date of Reserving of Order : 19.02.2024
Date of pronouncing Order : 12.03.2024
Suit No. 58915/16 Anoop Dahiya & Ors vs. MCD & Anr. 1 of 29
SUIT FOR PERMANENT INJUNCTION
1. That the plaintiff no.1 purchased the property measuring 205 sq. yards, out of Mustatil No.51, Killa No. 18, 19/1, 22/1, 23 & 24 and Mustatil No.52, Killa No. 1/2 min, 3/1 & 4/1/1, situated at Narela, now known as Nai Basti, Lampur Road, Near Railway Crossing, Bankner, Narela Delhi-110040 from the erstwhile owner Shri Om Prakash S/o Shri Tek Chand, R/o Village & P.O. Nahara, Tehsil & District Sonepat, Haryana vide Agreement to Sell & Purchase, Special Power of Attorney, Affidavit, Receipt, registered Will & registered General Power of Attorney Ex. PW-1/8 (OSR) to Ex. PW-1/13 (OSR). The plaintiff no.2 purchased the property measuring 156 sq. yards alongwith whole of its structure out of Mustatil No.51, Killa No.18, 19/1, 22/1, 23 & 24 and Mustatil No.52, Killa No. 1/2, 2/1 min, 3/1 & 4/1/1, situated at Narela, now known as Nai Basti, Lampur Road, Near Railway Crossing, Bankner, Narela, Delhi- 110040 from its erstwhile owner Shri Siri Ram Jain S/o Shri Banwari Lal, R/o 1635, Gali no.13, Rajgarh Colony, Delhi vide Agreement to Sell & Purchase, Special Power of Attorney, Affidavit, Receipt, registered Will & registered General Power of Attorney Ex. PW-1/1 (OSR) to Ex. PW-1/6 (OSR). Both the plaintiffs, after purchase of their respective properties, have merged the same into one big plot measuring 361 sq. yards. In the common property of the plaintiffs, they have constructed a building comprising of ground, first and second floor, wherein the plaintiff no.2 has been running a hospital by the name of Shanti Mohan Hospital.
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2. That since the purchase of the suit property by the plaintiffs in August and December, 1992, both are in peaceful possession and occupation of the same. On 03.02.2010, the Land & Building Department, Govt. of NCT of Delhi issued the notification bearing no. F 11(56)/08/L&B/LA/14040, U/s 4(1) of the Land Acquisition Act, 1894 in which the land situated in mustatil No. 52 of Narela area & other was proposed to be acquired. That thereafter, the notification U/s 6 of Land Acquisition Act, dated 12.02.2010 was also issued. The acquisition of the land was sought for construction of RUB (Railway Under Bridge) under Common Wealth Games Project at Level Crossing on Narela- Lampur Road at Narela in Narela Zone and the list of properties situated on the right hand side from the railway line to village Bankner as per the requirement of the land was prepared, wherein the name of the plaintiffs has been mentioned and a total area of 61.366 sq. meters was required for the said purpose. That pursuant to the said notification, the demarcation proceedings were carried out and the plaintiffs being the law abiding citizen fully cooperated in the acquisition and they themselves had undertaken the demolition process and even put to deprivation of their property to the extent of more than 61.633 sq. meters (approx). That pursuant to the said notification, the proceedings for taking the physical possession of the land were carried out on 18.05.2010 and 08.06.2010 by the concerned officials of Land Acquisition Department as well as the defendant (MCD), who have already taken possession of more than 61.633 sq. meter approx. land of the plaintiffs.
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3. That till date, the plaintiffs have not received even a single penny towards the due compensation in lieu of the acquisition of their property. That suddenly to the utter surprise and anguish of the plaintiffs, Assistant Engineer, Narela Zone, MCD, visited the suit property alongwith JCB, Police Force and a large number of officials of MCD on 18.02.2011 and directed the plaintiffs to vacate the suit property on the ground that they had to demolish and take possession of some more portion of the property of the plaintiffs. The plaintiffs explained to the said Assistant Engineer Shri S.K. Gupta that there has been no cause, reason or occasion with the MCD to take any coercive action in view of the fact that the plaintiffs have already been deprived of their property to a large extent. That when the Assistant Engineer did not accede to the requests of the plaintiffs, they emphatically resisted the illegal actions of officials of the defendant and called the police at No.100 whereupon, PCR also reached at the spot and the officials of the defendant could not succeed in their illegal action. That thus, the threatened action on the part of the defendant is highly illegal, improper, arbitrary and without any legal sanctity and in that process, the defendant has miserably failed to follow the due process of law. That when the required land for the project has already been taken, there is no rationale or legal basis for the action of the defendant/MCD, more specifically without any action by the LAC Department in demanding more land from the plaintiffs without due process of law and even without any notification by the competent authority. That therefore, the plaintiffs have no other efficacious remedy except to approach this Hon'ble Court by way of present suit. That the cause of action for filing the present suit in favour of the Suit No. 58915/16 Anoop Dahiya & Ors vs. MCD & Anr. 4 of 29 plaintiffs and against the defendant has arisen on 18.02.2011 when the Assistant Engineer of the RUB Project (CWG), Narela Zone, MCD visited the suit property with intention to demolish the suit property. That the value of the suit for the purpose of Court fee and jurisdiction is Rs.130/- each for the relief of Permanent Injunction and Mandatory Injunction.
4. Hence, the plaintiffs have filed the present suit seeking following reliefs:-
(a) pass a decree of permanent injunction in favour of the plaintiffs and against the defendant, thereby restraining the defendant, its officials, employees, agents, attorneys from demolishing any part of the suit property of the plaintiffs and taking possession thereof i.e. Property bearing no.18, Shanti Mohan Hospital, Nai Basti, Lampur Road, near Railway Crossing, Bankner, Narela, Delhi-
110040 (more particularly shown in Black Colour in the attached site plan and photographs attached with the plaint) and from interfering in the peaceful possession of the plaintiffs in the suit property.
b) pass a decree of mandatory injunction in favour of the plaintiffs and against the defendant, thereby directing the defendant not to take any action against suit property of plaintiffs ie. Property bearing no.18, Shanti Mohan Hospital, Nai Basti, Lampur Road, near Railway Crossing, Bankner, Narela, Delhi- 110040 (more particularly shown in Black Colour in the attached site plan and Suit No. 58915/16 Anoop Dahiya & Ors vs. MCD & Anr. 5 of 29 photographs attached with the plaint) without due process of law and without any notification by the competent authority/department.
WRITTEN STATEMENT
5. The defendant no.1 was duly served and it has filed written statement. The defendant no.1, in its written statement, has put forth the following defenses:
5.1 That the suit is not maintainable in the present form as the suit has not been filed by the title holder/owner of the property and has no locus standi to file the suit against the answering defendants. That the plaintiff has not handed over the complete possession of the suit property as per notification u/S 4 & 6 & 17 of Land Acquisition Act sought for the construction of RUB (Railway Under Bridge) at public expense for a public purpose at level crossing on Narela Lampur Road in Narela Zone, Delhi for which payment has been made by answering defendant to Land and Building Department of Govt. of Delhi vide cheque no. 010678 dated 10.02.2010 towards the compensation of acquired land to be reimbursed. The MCD has full right to demolish any unauthorized construction/ encroachment on the land as per the provision of the Act for the construction of public utility conducted at the expense of the public money without any notice & as per notification, the plaintiffs have not handed over the complete possession of land to the satisfaction of defendants for the smooth construction of RUB.
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6. Defendant no.2 was impleaded as a party in the present matter vide order dated 25.05.2011. In WS filed on behalf of defendant no.2, it is stated that the jurisdiction of this Court to deal with the present matter is barred as there are specially constituted courts dealing with the Land Acquisition cases. It is further stated that the land in question has been validly acquired and the defendants are free to take possession of the land at any time and that the possession of entire acquired land except khasra no. 52/3 (0-0-10) and 52/8 min (0-1-10) was taken on 08.06.2010 and 18.05.2010. It is further stated that the possession of Khasra no.52/3 (0-0-10) was not taken due to heavy built up. It is further stated that the acquired land is at the disposal of MCD and hence, MCD is fully competent and within jurisdiction to protect the acquired land. With these submissions, it is prayed that present suit be dismissed.
7. Replication was filed on behalf of the plaintiff against the WS filed by defendants in which the averments made in the plaint were reiterated and those in the WS were denied.
ISSUES
8. On completion of the pleadings of the parties, following issues were framed on 21.01.2015,
1. Whether the plaintiff is entitled to decree of permanent injunction, as prayed? (OPP)
2. Whether the plaintiff is entitled to decree of mandatory injunction, as prayed? (OPP)
3. Whether the present suit is barred by provisions of Section 477/478 of the DMC Act? (OPD-1).
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4. Whether the present court has no jurisdiction to try the present case? (OPD-2)
5. Relief?
PLAINTIFF'S EVIDENCE:
9. In order to prove their case, plaintiffs examined 9 witnesses. Plaintiff no. 1 examined herself as PW-1 and led her evidence by way of an affidavit Ex.PW-1/A. PW-1 relied upon following documents:-
(i) Agreement to Sell & Purchase, Special Power of Attorney, Affidavit, Receipt, registered Will & registered General Power of Attorney are Ex.PW1/1 to Ex. PW-1/6 (OSR) executed by Sh. Siri Ram Jain in favour of plaintiff no.1 Mrs. Anoop Dahiya.
(ii) Registered Sale deed dated 25.07.1971 is Ex.
PW-1/7.
(iii) Agreement to Sell & Purchase, Special Power of Attorney, Affidavit, Receipt, registered Will & registered General Power of Attorney are Ex.PW1/8 to Ex. PW-1/13 (OSR) executed by Sh. Om Prakash in favour of plaintiff no.2 Dr. Mahender Singh.
(iv) Site plan is Ex. PW-1/14.
(v) Photographs are Ex. PW-1/15.
(vi) Registration Certificate of hospital is Ex. PW-
1/16 (OSR).
(vii) House Tax receipts Ex. PW-1/17 (colly).
(viii) Copy of election Voter ID card of plaintiff is Ex.
Suit No. 58915/16 Anoop Dahiya & Ors vs. MCD & Anr. 8 of 29 PW-1/18.
(ix) Electricity bill Ex.PW-1/19 (colly).
(x) Telephone bill Ex. PW-1/20 (colly).
(xi) Application under RTI dated 01.08.2013 Ex.
PW-1/21 (objected to mode of proof).
(xii) Application under RTI dated 16.03.2011 Ex.
PW-1/22 (objected to mode of proof).
(xiii) Appeal under RTI dated 10.06.2016 Ex. PW-1/23 (objected to mode of proof).
(xiv) Document received under RTI ie. possession proceedings dated 18.05.2010, 08.06.2010 and 13.05.2020 Ex. PW-1/24.
(xv) DD no.13A, dated 18.02.2011 Ex. PW-1/25. (xvi) Copy of letter dated 21.02.2011 Ex. PW-1/26. (xvii) Document received under RTI ie. attested copy of akshizra, joint survey list Ex. PW-1/27 (colly).
xviii) Appeal under RTI dated 10.02.2012 Ex PW-
1/28.
(xix) Certified copy of award no. 1535 Ex. PW-1/29. (xx) Copy of site plan of RUB project Mark A. (xxi) Legal notice dated 26.03.2015 Ex. PW-1/31.
9.1 She was duly cross examined by Ld. Counsel for both defendants. In her cross-examination on behalf of defendant no.2, she admitted that kabza karwai documents dated 18.05.2010 and 08.06.2010 do not mention the fact that she voluntarily handed over the possession to the defendants. She further stated that she does not recall the name of the official of Suit No. 58915/16 Anoop Dahiya & Ors vs. MCD & Anr. 9 of 29 MCD and LAC to whom she voluntarily handed over the possession of 61.663 sq. meter. She further admitted that measurement was done as per the direction of Ld. Appellate Court and voluntarily stated that projection was included in the measurement. She admitted her signatures at point A on the report but stated that the report is not correct. She admitted that the appeal filed by her was decided on the basis of report dated 27.10.2012 Ex. PW-1/DX. She expressed denial about the fact whether she and her husband are the recorded owners as per law and whether they are entitled to get the compensation. She further stated that she had not filed any document of financial loss as stated in para no.11 of evidence affidavit and she was aware about the acquisition land. She further stated that the land was notified for the purpose of construction of Railway Under Bridge (RUB). She stated that RUB project goes in front of her house as well. She further stated that the Land Acquisition Collector has followed due process of law while acquiring the land and she had not applied for compensation before the LAC and she had not applied for alternate plot with any authority. 9.2 In her cross-examination on behalf of defendant no.1, she stated that all her documents Ex. PW-1/6 to Ex. PW/13 were got registered in Karnal. She stated that she had given notice to MCD before filing the case and after seeing the court file witness submitted that Ex. PW-1/26 was the letter sent by them to the MCD before filing the case and she cannot say that she had served the MCD with the notice u/s 477/478 of DMC Act before filing this suit. She denied the suggestion that Ex. PW- 1/26 is not a notice which was sent to the MCD.
9.3 She has further stated that her plot belongs to min Suit No. 58915/16 Anoop Dahiya & Ors vs. MCD & Anr. 10 of 29 52/4 and plots on both sides East and West are also min 52/4 and this was told to her at the time of purchase and also all her neighbors told her the same thing and also the survey carried out by Revenue Department, MCD and LAC which she got through RTI also tells her that her property belongs to Khasra no. 52/4. She further stated that 2 mustatil numbers and 9 killa numbers have been mentioned in her title documents as the colonizer has passed all his mustatil number and killa number to all the purchasers. She expressed her denial on being asked if she is in possession of any document from the Revenue Authority to identify the piece of land that she was going to buy. She stated that she got confirmed through RTI from LAC department that her property falls in khasra no. 52/4. She denied the suggestion that the portion of her property falls in khasra no. 52/3.
10. PW-2 Sh. M.S. Dahiya has tendered his evidence by way of affidavit Ex. PW-2/A which bears his signatures at point A and B and relied upon documents already exhibited and marked in evidence of PW-1.
PW-2 adopted the examination-in-chief of plaintiff no.1 (his wife). Accordingly, Ld. Counsel for defendant no.1 also adopted the further cross-examination after dated 10.09.2018 of plaintiff no.1 conducted by him. Ld. Counsel for defendant no.2 adopted the cross-examination of plaintiff no.1 conducted by him.
11. Sh. Meer Singh, Ex-Kanoongo examined as PW-3. He stated that joint survey was conducted in the year 2010 and he was the member of joint survey team and joint survey report Ex.
Suit No. 58915/16 Anoop Dahiya & Ors vs. MCD & Anr. 11 of 29 PW-3/1 (colly) is having his signatures at point X1 to X8 (running into 8 pages). He also identified the photographs at Sr. no.2 in Ex. PW-1/15 from photograph 1 to 3 and his signature at Kabja Karwai report dated 18.05.2010 Ex. PW-1/24 at point A1 to A3. He further stated that one document of Nishan Dehi i.e. demarcation dated 28.04.2010 Ex. PW-3/2 also bears his signatures at point A-4. He was duly cross-examined by the counsel for defendant no.1 and 2. During his cross-examination, he stated that he can not tell whether the plaintiff has given the possession of acquired land on which survey was conducted.
12. Sh. Sunil Kumar, Patwari was examined as PW-4. He has proved akshizra of village Narela as Ex. PW-1/4 (OSR). He was not cross-examined by both the defendants despite opportunity.
13. PW-5 Sh. Harinder Mohan, Kanoongo was examined as PW-5 who deposed that joint survey report is not available with their department. He was not cross-examined by both the defendants despite opportunity.
14. Sh. Sukhpal Singh, Kanoongo was examined as PW- 6 and he proved original joint survey report of village Narela and Bakner, RUB, Railwar crossing, Narela, Lampur road, dated 22.03.2010, 23.03.2010 and 31.03.2010 with list of joint survey village Narela and Bakner construction of RUB at level crossing on Narela Lampur road at Narela in Narela Zone as PW-6/1 (OSR). He was cross-examined by counsel for defendant no.1 and 2. During his cross-examination on behalf of defendant no.1, Suit No. 58915/16 Anoop Dahiya & Ors vs. MCD & Anr. 12 of 29 he stated that neither he has been authorized by LAC North District to depose nor any specific letter has been given to him to bring any original record before the Court.
15. ASI Vats Raj Singh was examined as PW-7. He has proved DD no.13A, dated 18.02.2011 as Ex. PW-7/1. He was not cross-examined by defendants despite opportunity.
16. Sh. Ramesh Chand, Kanoongo was examined as PW-8. He has proved original list of joint survey village Narela and Bankner construction of RUB at Narela Lampur Road at Narela zone as Ex. PW-8/1 (OSR) and kabza karwai Narela RUB, Narela Lampur road dated 08.06.2010 as Ex. PW-8/2 (OSR). He also brought the original record of Joint Survey report dated 22.03.2010, 23.03.2010 and 31.03.2010 and kabza karwai dated 18.05.2010. He was duly cross-examined by counsel for defendants no.1 and 2.
17. Sh. Bhupender Singh, Executive Engineer was examined as PW-9. He proved photocopy of list of properties LHS and RHS from page no.1 to 6 as available in the record, prepared by EE (Project), Narela as Ex. PW-9/A and photocopy of letter dated 21.02.2011 as available in the record addressed to Executive Engineer, RUB Project, Narela from Dr. M.S. Dahiya as Ex. PW-9/B (objected to mode of proof by counsel for defendant no.2). He was cross-examined by counsel for defendants. In his cross-examination, he stated that the originals of Ex. PW-9/A and Ex. PW-9/B were neither in their record nor he had seen the same.
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18. Thereafter, plaintiff's evidence was closed.
DEFENCE EVIDENCE
19. Defendant no.1 has examined only one witness in its evidence. Sh. Sachin Roorkiwal, Assistant Engineer, MCD was examined as DW-1 and tendered his evidence by way of affidavit Ex. DW-1/A. He has also proved following documents:-
(a) Copy of possession proceedings dated
08.06.2010 MARK E.
(b) Copy of letter to Deputy Commissioner
(Revenue) for possession of land acquired vide notification No.F.11(56)/08/L&B/LA/14603 dated 07.01.2014 MARK A.
(c) Copy of letter to The Land Acquisition Collector for possession of land acquired vide notification No. F.11(56)/08/L&B/LA/14603 dated 02.07.2013 MARK B.
(d) Copy of letter to Deputy Commissioner (Revenue) for possession of land acquired vide notification No. F.11(56)/08/L&B/LA/14603 dated 12.03.2013 MARK C.
(e) Copy of letter to The Land Acquisition Collector or possession of land acquired vide notification No. 11(56)/08/L&B/LA/14603 dated 18.02.2013 MARK-D. 19.1 He was duly cross examined by Ld. Counsel for plaintiffs. In his cross-examination, he stated that the document Mark E is only the photocopy as the possession proceedings Suit No. 58915/16 Anoop Dahiya & Ors vs. MCD & Anr. 14 of 29 originals are with the Land and Acquisition Department. He was questioned that whether any possession proceedings were held for RUB under question before 08.06.2010, to which, he stated that he cannot say whether the possession proceedings were taken before or after 08.06.2010 since all these proceedings are matter of record. He further stated that he cannot say whether the amount deposited by the MCD to the Land Acquisition Department have been paid to the people whose land were acquired by them. He was further questioned if he knew that on 08.06.2010, how much land of the plaintiff was acquired, the exact dimensions, to which, he stated that as per the site plan "Annex A" filed along with affidavit on behalf of defendant dated 21.11.2011 by MCD, 2.00 meters land is yet to be taken inside the plaintiff's property as 30 meters are required and only 28 meters is available. He further stated that MCD can not approach for taking possession without seeking the assistance of LAC. Thereafter, DE was closed on behalf of defendant no.1.
20. No evidence was led on behalf of defendant no.2 and matter was listed for final arguments.
21. Thereafter, final arguments were advanced by the Ld. Counsel for plaintiff and Ld. Counsel for defendant no.1.
22. I have given due consideration to the submissions and I have perused the record.
ISSUE WISE FINDINGS ISSUE NO.1 Whether the plaintiff is entitled to decree of Suit No. 58915/16 Anoop Dahiya & Ors vs. MCD & Anr. 15 of 29 permanent injunction, as prayed? (OPP).
23. The onus to prove this issue is upon the plaintiffs.
24. It has been argued by counsel for plaintiffs that the land in question has been acquired by Land & Building Department and accordingly, it is only Land Acquisition Collector who can come and take possession of the acquired land. It has further been argued that the only prayer of plaintiff is that defendant no.1/MCD should not come alone to take the possession. It has further been argued that as per kabza karwai, dated 08.06.2010, 18.05.2010 and 13.05.2010, possession of the entire acquired land except khasra no.52/3 min. (0-0-10) has been taken and that the property of the plaintiff falls under khasra no. 52/4 which has been admitted by defendants in its joint survey report Ex. PW-6/1 and hence, there is no occasion to ask for possession of more land from the plaintiffs. It is further submitted that the said list has been duly proved by PW-6 and PW-8. On the other hand, counsel for defendant no.1 has argued that by way of present suit, the plaintiff is trying the seek the relief of declaration against LAC in the garb of injunction. It has further been argued that even defendant no. 2 has stated in his WS that possession of certain portion of land is yet to be taken. It has further been argued that application u/O 39 Rule 1 & 2 CPC filed by plaintiffs was dismissed and the said order was upheld even by Ld. Appellate Court. It has further been argued that the plaintiffs have not led any positive evidence to prove that their property do not fall in khasra no. 52/3 but they are relying upon the joint survey report which is only a rough estimation of the area to be acquired.
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25. First of all, it is pertinent to note that admittedly, after issuance of notification u/s 6 of Land Acquisition Act dt. 12.02.2010, title of the land falling in Khasra no. 52/3 min (0-0-
10) and 52/4 vests in the government as the said notification is subsisting till date. Thus, it can be said the plaintiffs are claiming the relief of injunction against the government who has ownership rights over Khasra no. 52/3 min (0-0-10) and 52/4. The plea of the plaintiffs is that their property does not fall in Khasra no. 52/3 and hence, no further portion of land should be claimed from them. In such a scenario, it is upon the plaintiffs to prove that their property does not fall in Khasra no. 52/3 and hence, they are entitled to injunction against government/true owner.
26. First of all, it is pertinent to note that LAC was impleaded as defendant in the present suit vide order dated 26.05.2011 and in pursuance thereof, the plaint was not amended. Accordingly, it is assumed that the plaintiff is claiming the relief of permanent injunction qua dispossession against both the defendants. Hence, the argument raised on behalf of plaintiffs that MCD can not come alone to take the possession of khasra no. 52/3 falls to the ground.
27. The plaintiffs have proved that they are in possession of the suit property by proving House Tax receipts Ex. PW-1/17 (colly), Copy of election Voter ID card of plaintiff is Ex. PW-1/18, Electricity bill Ex.PW-1/19 (colly) and Telephone bill Ex. PW-1/20 (colly). However, this court cannot hold that Suit No. 58915/16 Anoop Dahiya & Ors vs. MCD & Anr. 17 of 29 the defendants cannot dispossess the Plaintiffs without due process of law, even if the Plaintiffs are stated to be in settled possession. It is not necessary for the defendants to file a suit to take possession from them. The defendants can establish before the Court that the Plaintiffs are in possession of a government land and the same can result in dismissal of the suit. Due process of law, as is settled in several judgments of the Supreme Court and Hon'ble High Court of Delhi, does not always require initiation of action by the owner/ Government. Dismissal of a suit by a competent Court of law after affording proper opportunity to the parties, is also a recognized mode of following the due process of law. On this issue, the observations of the Supreme Court in Maria Margarida Sequeira Fernandes & Ors. v. Erasmo Jack De Sequeira (Dead) through LRs, (2012) 5 SCC 370, are as under:
"81. Due process of law means nobody ought to be condemned unheard. The due process of law means a person in settled possession will not be dispossessed except by due process of law. Due process means an opportunity for the Defendant to file pleadings including written statement and documents before the Court of law. It does not mean the whole trial. Due process of law is satisfied the moment rights of the parties are adjudicated by a competent Court.
82. The High Court of Delhi in a case Thomas Cook (India) Limited v. Hotel Imperial, 2006 (88) DRJ 545 : (AIR 2007) (NOC) 169) held as under:
"28. The expressions 'due process of law', 'due course of law' and 'recourse to law' have been interchangeably used in the decisions referred to above which say that the settled possession of even a person in unlawful possession cannot be disturbed 'forcibly' by the true owner taking law in his Suit No. 58915/16 Anoop Dahiya & Ors vs. MCD & Anr. 18 of 29 own hands. All these expressions, however, mean the same thing - ejectment from settled possession can only be had by recourse to a court of law. Clearly, 'due process of law' or 'due course of law', here, simply mean that a person in settled possession cannot be ejected without a court of law having adjudicated upon his rights qua the true owner.
Now, this 'due process' or 'due course' condition is satisfied the moment the rights of the parties are adjudicated upon by a court of competent jurisdiction. It does not matter who brought the action to court. It could be the owner in an action for enforcement of his right to eject the person in unlawful possession. It could be the person who is sought to be ejected, in an action preventing the owner from ejecting him. Whether the action is for enforcement of a right (recovery of possession) or protection of a right (injunction against dispossession), is not of much consequence."
28. This position was reiterated by Hon'ble High Court of Delhi in Bal Bhagwan v. Delhi Development Authority [CM (M) 416/2019, decided on 18th December, 2020] holding that the 'due process' condition would be sufficiently met if a person in settled possession is dispossessed by the dismissal of an application for interim injunction, as long as the rights of the parties are adjudicated upon and opportunity is given to them to present their case. On the question of 'due process', it was observed as under:
"The issue as to what constitutes 'due process' is thus settled beyond any doubt. The Plaintiff, who is claiming possession, can be dispossessed in the suit for injunction filed by him. Due process does not always mean that the owner has to file the suit to prove his title. So long as a Court of law has examined the documents and has given a fair hearing to the parties concerned, the compliance of due process has taken place. Moreover, due process of law also Suit No. 58915/16 Anoop Dahiya & Ors vs. MCD & Anr. 19 of 29 does not mean the final adjudication after trial. It merely means an opportunity being given to present the case before the Court of law and the rights of the parties being adjudicated. It does not mean the whole trial, as per Maria Margarida (supra).
60. The judgment of the Supreme Court in Rame Gowda (supra) is to the effect that if a party is in settled possession, his possession cannot be disturbed without due process of law being followed. The said case related to a private land in dispute between two private parties. The lands of the Plaintiff and the Defendant were adjoining in nature and there was a dispute as to the demarcation thereof. Since the identification and extent of the land itself was in doubt, the Court, in order to protect the Plaintiff, held that the owner would have to assert his title in an independent suit. The facts of the said case cannot be compared to the facts of the present case to permit an encroacher and illegal occupant to retain possession of the suit property.
61. The plea of adverse possession, though pleaded in the plaint, has been given up in the present petition and only settled possession is argued. The question as to whether the Plaintiff is in settled possession or not, in terms of the test laid down in Puran Singh (supra) need not be gone into in the present case, inasmuch as the fact that the Plaintiff is in possession, in whatsoever capacity, to the knowledge of the authorities, is clear from the khasra girdawari itself. The person in settled possession cannot continue to remain in possession forever. Once a Court of law has arrived at the conclusion that the person in possession has no rights, the possession can be taken away. The Trial Court has not merely relied upon Jagpal Singh (supra) but also considered various judgments of the Supreme Court including Rame Gowda (supra) and Maria Margarida (supra). Thus, the grievance against the Trial Court judgment that it followed Jagpal Singh (supra) which is per incuriam is without any merit"
29. In view of this legal position, the requirement of Suit No. 58915/16 Anoop Dahiya & Ors vs. MCD & Anr. 20 of 29 adhering to due process of law has been satisfied in the present case and the Plaintiffs are not being dispossessed contrary to law.
30. This brings the Court to the question of the onus of the Plaintiffs of proving their ownership of the suit property. It is well-settled that in cases of government land, there is a greater responsibility of Courts in ascertaining title of third parties. In fact, the plaintiff in such cases must establish his clear right, title and nature of possession in the property, superior to that of the Government authority as there is a presumption in favour of the Government. In such cases, the Supreme Court has clearly observed that it is not sufficient to show possession or adverse possession merely by some stray revenue entries or records. This position was elaborated upon by the Hon'ble Supreme Court in R. Hanumaiah and Ors. v. Secretary to Government of Karnataka, Revenue Department and Ors., (2010) SCC 203:
"Nature of proof required in suits for declaration of title against the Government
15. Suits for declaration of title against the government, though similar to suits for declaration of title against private individuals differ significantly in some aspects. The first difference is in regard to the presumption available in favour of the government. All lands which are not the property of any person or which are not vested in a local authority, belong to the government. All unoccupied lands are the property of the government, unless any person can establish his right or title to any such land. This presumption available to the government, is not available to any person or individual. The second difference is in regard to the period for which title and/or possession have to be established by a person suing for declaration of title. Establishing title/possession for a period exceeding twelve Suit No. 58915/16 Anoop Dahiya & Ors vs. MCD & Anr. 21 of 29 years may be adequate to establish title in a declaratory suit against any individual. On the other hand, title/possession for a period exceeding thirty years will have to be established to succeed in a declaratory suit for title against government. This follows from Article 112 of Limitation Act, 1963 which prescribes a longer period of thirty years as limitation in regard to suits by government as against the period of 12 years for suits by private individuals. The reason is obvious. Government properties are spread over the entire state and it is not always possible for the government to protect or safeguard its properties from encroachments. Many a time, its own officers who are expected to protect its properties and maintain proper records, either due to negligence or collusion, create entries in records to help private parties, to lay claim of ownership or possession against the government. Any loss of government property is ultimately the loss to the community. Courts owe a duty to be vigilant to ensure that public property is not converted into private property by unscrupulous elements.
16. Many civil courts deal with suits for declaration of title and injunction against government, in a casual manner, ignoring or overlooking the special features relating to government properties. Instances of such suits against government being routinely decreed, either ex parte or for want of proper contest, merely acting upon the oral assertions of plaintiffs or stray revenue entries are common. Whether the government contests the suit or not, before a suit for declaration of title against a government is decreed, the plaintiff should establish, either his title by producing the title deeds which satisfactorily trace title for a minimum period of thirty years prior to the date of the suit (except where title is claimed with reference to a grant or transfer by the government or a statutory development authority), or by establishing adverse possession for a period of more than thirty years. In such suits, courts cannot, ignoring the presumptions available in favour of the government, grant declaratory or injunctive decrees against the government by Suit No. 58915/16 Anoop Dahiya & Ors vs. MCD & Anr. 22 of 29 relying upon one of the principles underlying pleadings that plaint averments which are not denied or traversed are deemed to have been accepted or admitted. A court should necessarily seek an answer to the following question, before it grants a decree declaring title against the government : whether the plaintiff has produced title deeds tracing the title for a period of more than thirty years; or whether the plaintiff has established his adverse possession to the knowledge of the government for a period of more than thirty years, so as to convert his possession into title.
Incidental to that question, the court should also find out whether the plaintiff is recorded to be the owner or holder or occupant of the property in the revenue records or municipal records, for more than thirty years, and what is the nature of possession claimed by the plaintiff, if he is in possession - authorized or unauthorized; permissive; casual and occasional; furtive and clandestine; open, continuous and hostile; deemed or implied (following a title).
17. Mere temporary use or occupation without the animus to claim ownership or mere use at sufferance will not be sufficient to create any right adverse to the Government. In order to oust or defeat the title of the government, a claimant has to establish a clear title which is superior to or better than the title of the government or establish perfection of title by adverse possession for a period of more than thirty years with the knowledge of the government. To claim adverse possession, the possession of the claimant must be actual, open and visible, hostile to the owner (and therefore necessarily with the knowledge of the owner) and continued during the entire period necessary to create a bar under the law of limitation. In short, it should be adequate in continuity, publicity and in extent. Mere vague or doubtful assertions that the claimant has been in adverse possession will not be sufficient.
31. Unexplained stray or sporadic entries for a year or for a few years will not be sufficient and should be ignored. As Suit No. 58915/16 Anoop Dahiya & Ors vs. MCD & Anr. 23 of 29 noticed above, many a time it is possible for a private citizen to get his name entered as the occupant of government land, with the help of collusive government servants. Only entries based on appropriate documents like grants, title deeds etc. or based upon actual verification of physical possession by an authority authorized to recognize such possession and make appropriate entries can be used against the government.
32. Thus, the Plaintiffs had a heavy onus to establish the following:
(i) That they had acquired the suit property through legally recognized documents such as registered sale deed, allotment from governmental authorities, etc. However, no such documents were produced by the Plaintiffs.
(ii) That the Plaintiffs were in possession of the suit property which falls in Khasra No.52/4 - this ought to have been established by positive evidence and not by an inference from RTI replies or joint survey report.
33. In the present case, the ownership documents relied upon by plaintiffs are GPA, Agreement to Sell, SPA, Will etc. Ex. PW-1/1 to Ex. PW1/13 (all OSR). Perusal of the said documents shows that title of 156 sq. yards is sought to have been transferred by Sh. Siri Ram Jain in favour of plaintiff no.1 vide documents Ex.PW-1/1 to Ex.PW-1/6 (OSR). However, a careful scrutiny of the said documents shows that SPA Ex.PW-1/2 (OSR) and GPA Ex.PW-1/6 (OSR) have been executed in favour of plaintiff no.1 by Sh. Om Prakash with respect to 205 sq. yards, Suit No. 58915/16 Anoop Dahiya & Ors vs. MCD & Anr. 24 of 29 whereas, the remaining documents in favour of the plaintiff are with respect to 156 sq. yards and executed by Sh. Siri Ram Jain. Similarly, the documents Ex. PW-1/8 to Ex. PW-1/13 (OSR) relied upon by plaintiff no. 2 also appears to be defective. A careful scrutiny of the said documents shows that SPA Ex.PW- 1/9 (OSR) and GPA Ex.PW-1/13 (OSR) have been executed in favour of plaintiff no. 2 by Sh. Siri Ram Jain with respect to 156 sq. yards, whereas, the remaining documents in favour of the plaintiff no. 2 are with respect to 205 sq. yards and executed by Sh. Om Prakash. Further, the plaintiff no.1 has admitted in her cross-examination dated 12.03.2018 that the said documents were got registered in Karnal despite the fact that the property is situated in Narela, Delhi. The aforesaid facts raise doubt about the due execution of said documents. Even otherwise, by way of aforesaid documents, the plaintiff has neither acquired title over the aforesaid land as they are not registered sale deed nor the plaintiffs appear to be properly authorized agents of the erstwhile owners to sue. The plaintiffs have based their locus to file the present suit on the basis of aforesaid documents. However, in view of the above discussion, this Court has no hesitation to hold the plaintiffs have no locus to come to the Court and seek relief against the government.
34. It is also pertinent to note that even otherwise, from the documents Ex. PW-1/1 to Ex. PW-1/13 (OSR) relied upon by the plaintiffs, it is clear that a portion of the plaintiff's property falls in khasra no. 52/3. The only document relied upon by the plaintiffs to support their case is the joint survey report Ex. Pw- 6/1 wherein khasra no. 52/4 is mentioned against the name of Suit No. 58915/16 Anoop Dahiya & Ors vs. MCD & Anr. 25 of 29 plaintiff no. 2 and rti reply dated 13.09.2013. Perusal of RTI reply shows that the information to the effect that the property of plaintiff falls in khasra number 52/4 was given on the basis of joint survey report. Hence, the ultimate document relied upon by the plaintiffs is the joint survey report. The said document cannot be said to be of much help to the case of plaintiffs as the plaintiffs have otherwise failed to show their locus to claim any relief with respect to khasra no. 52/3 or even 52/4. Firstly, there is no evidence on record to show that the land sought to be taken possession of falls in khasra no 52/4 and not in khasra no. 52/3. As per the report of Tehsildar dated 22.07.2013, no demarcation of the property of plaintiff is possible as the plaintiffs are not the recorded owners in the revenue record. Secondly, even if the plaintiffs would have been able to prove that the land sought to be taken possession of falls in khasra no 52/4 and not in khasra no. 52/3, then also they cannot be granted the relief of injunction as they have failed to show their locus to claim the relief against the government in whom the land in question has vested since passing of notification under the Land Acquisition Act.
35. In view of the above discussion, this issue is decided against the plaintiffs and in favour of the defendants.
ISSUE NO.2 Whether the plaintiff is entitled to decree of mandatory injunction, as prayed? (OPP)
36. The onus to prove this issue is upon the plaintiffs.
37. In view of the findings on issue no. 1, this issue is decided against the plaintiffs and in favour of the defendants.
Suit No. 58915/16 Anoop Dahiya & Ors vs. MCD & Anr. 26 of 29 ISSUE NO.3 Whether the present suit is barred by provisions of Section 477/478 of the DMC Act? (OPD-1).
38. The onus to prove this issue is upon the defendant no. 1.
39. The plaintiff claims that letter Ex. Pw-1/26 is the notice served upon MCD/defendant no. 1 prior to filing of the present suit whereas counsel for defendant no. 1 has argued that Ex. PW-1/26 is not a notice u/s 477/478 of the DMC Act.
40. Sec 478(3) of DMC Act is as under:-
(3) Nothing in sub-section (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.
41. The present suit was filed by the plaintiffs for the relief of permanent injunction and hence, the filing of same without notice is saved by Sec 478(3) of DMC Act.
42. In view thereof, this issue is decided against the defendant no. 1 and in favour of the plaintiffs.
ISSUE NO.4 Whether the present court has no jurisdiction to try the present case? (OPD-2)
43. The burden to prove this issue is upon defendant no.2. It has been argued by counsel for plaintiff that the present suit is not barred by Land Acquisition Act as plaintiffs are not claiming any relief against defendant no.2.
Suit No. 58915/16 Anoop Dahiya & Ors vs. MCD & Anr. 27 of 29
44. It is pertinent to note that there is no express provision in the Act ousting the jurisdiction of the Civil Court. On the contrary, Section 52 of Land Acquisition Act, 1894 provides as follows:
"52. Notice in case of suits for anything done in pursuance of Act.--No suit or other proceeding shall be commenced or prosecuted against any person for anything done in pursuance of this Act, without giving to such person a month's previous notice in writing of the intended proceeding, and of the cause thereof, nor after tender of sufficient amends."
45. The provision of Section 52 makes it patent that the Civil Court has been given the jurisdiction to entertain and try any suit or any proceeding against any person for "anything done" in pursuance of the Act. This section thus declares by implication that if any person acting in pursuance of the Act, whether the Collector, or a land acquisition officer, takes possession of the land without complying with the provisions of the Act, the affected landowner would be entitled to seek remedy from a civil court by filing a suit against such officer after giving him a month's notice thereof. The only pre-requisite for filing civil suit is giving of one month's notice. The said notice has not been given in the present case. Hence, the present suit is not maintainable for want of notice as required u/s 52 of the Act.
46. In view thereof, this issue is decided against the plaintiffs and in favour of the defendant no. 2.
RELIEF
47. Considering the lack of cogent evidence supporting the plaintiff's claim, this Court finds that the plaintiffs have not Suit No. 58915/16 Anoop Dahiya & Ors vs. MCD & Anr. 28 of 29 met the burden of proof required to establish their entitlement to the relief sought in the suit. Therefore, the reliefs sought by the plaintiffs, namely, permanent and mandatory injunction cannot be granted.
48. In view thereof, suit of the plaintiffs is dismissed. No order as to cost.
File be consigned to Record Room after due
compliance. Digitally signed
NEHA by NEHA
MITTAL
MITTAL 16:19:53
Date: 2024.03.12
+0530
(Announced in the open Court) (Neha Mittal)
th
on 12 March, 2024 ASCJ-JSCC-GJ (NORTH-WEST)
ROHINI COURTS DELHI
Suit No. 58915/16 Anoop Dahiya & Ors vs. MCD & Anr. 29 of 29