Delhi District Court
Sh. Anand Prakash Gupta vs Municipal Corporation Of Delhi on 21 May, 2012
IN THE COURT OF SH. LOKESH KUMAR SHARMA, JSCCCUM
ASCJCUMGUARDIAN JUDGE (WEST): DELHI
Suit No. 261/09
Unique Case I.D. No. 02401C0029001998
Sh. Anand Prakash Gupta
(since deceased)
Through L.R.
Sh. Ravinder Kumar Gupta
S/o Late Sh. Anand Prakash Gupta
R/o W56, Greater Kailash Part II,
New Delhi ...........Plaintiff
Versus
1. Municipal Corporation of Delhi
Through its Commissioner
Town Hall, Chandni Chowk,
Delhi110006.
2. Delhi Development Authority
Through its Vice Chairman,
I.N.A., Vikas Sadan,
New Delhi .........Defendants
Date of filing of the suit : 10.02.1998
Date of reserving judgment : 14.05.2012
Date of pronouncement of judgment : 21.05.2012
J U D G M E N T
1. The plaintiff had filed the present suit for permanent and mandatory injunction against the defendants. The brief facts necessary for the disposal of the suit are succinctly given as under: Suit No. 235/09 Page No. 1/25
2. It was stated that plot/property bearing no. 1436/153, Bagh Raoji, Military Road, Opp. Hem Raj Jain Hospital, New Delhi110005 (New Municipal no. 76G, now known as Than Singh Nagar, Delhi) was let out to Late Sh. Chhotey Lal by the then Delhi Improvement Trust at the rate of rent of Rs.30/ per month. The said plot was of 200 sq. yds as shown in the site plan. It was further submitted that the then Delhi Improvement Trust vide Receipt no. 2334 dated 07.09.1954 received a sum of Rs.264/ from late Sh. Chhotey Lal, father of the plaintiff. The details of the receipt were mentioned in para no. 2 of the plaint. It was further stated that after receipt of the said amount, the then Delhi Improvement Trust had also executed a Lease Deed in favour of late Sh. Chhotey Lal, father of the plaintiff in respect of the aforesaid plot and late Sh. Chhotey Lal was running a coal depot in the said plot since the year 1954 and after his death, the plaintiff being the son of the deceased and legal heir had succeeded to the interest, right and estate of the deceased including the suit property for which the license was also granted by the defendant Corporation in the year 1965. It was stated that subsequently after the expiry of the initial license, the plaintiff had applied to the defendant Corporation for the renewal of the said license vide his application dated 03.06.1968, which was duly granted by the Defendant Corporation vide its letter dated 12.03.1969. It was further stated that the Delhi Development Authority was constituted by an Act of Parliament under the Act known as Delhi Development Act, 1957 and the said Authority succeeded the then Delhi Improvement Trust, which was the lessor of the suit property.
Suit No. 235/09 Page No. 2/25
3. It was further stated that since the plaintiff was in possession of the suit property and the lease granted by the Delhi Improvement Trust and by its successor Delhi Development Authority was temporary, the plaintiff vide his letter dated 21.08.1984 had requested the Delhi Development Authority for execution of a perpetual lease deed so that the plaintiff had not to indulge at every stage for execution of fresh lease after the expiry of every five years.
4. It was stated that the Delhi Municipal Corporation was constituted by an Act of Parliament, known as Delhi Municipal Corporation Act, 1957 and the suit property was also allotted Municipal No. 76G and the area of Bagh Raoji was renamed as Than Singh Nagar and the defendant Corporation also found the plaintiff in lawful occupation and possession of the suit property and had thus assessed the suit property to House Tax and had sent a demand notice claiming House Tax in respect of the suit property from the plaintiff which the plaintiff had been regularly paying as was evident from the Demand notices issued and receipts showing the payment of the said amount by the plaintiff. It was further stated that the plaintiff had been in lawful possession of suit property in his own right and title where the plaintiff had been using the said room for godown purposes and his articles and material had been lying in the open plot as was shown in the site plan. It was further stated that on the back side of the suit property, there was a school of Municipal Corporation and on the right side there was a Mandir. It was stated that for the last few months the officials of the Education Department of the Defendant Corporation had been trying to extend the area of the School by usurping the suit Suit No. 235/09 Page No. 3/25 property which was in lawful possession and occupation of the plaintiff as a result thereof on 08.02.1998, a Junior Engineer, namely, Mr. Khan along with his mate contractor Mr. Khahed accompanied with certain officials of the Education Department of the Defendant Corporation from their office at Anand Parbat, bus stand with the help of the labour caused damage to the rear side of the boundary wall of the suit property shown at point A in the site plan to forcibly occupy the property of the plaintiff and the plaintiff immediately lodged a written complaint with the local police station Anand Parbat which was duly acknowledged by the police station on the same day i.e. 08.02.1998 and the local police had come to the suit property at about 1 p.m. and had reprimanded the officials of the Education Department of MCD and the engineering staff who had collected there and were responsible for causing damage to the rear boundary wall of the suit property. It was further stated that the local police officials intimated the plaintiff that since there were pressure of the higher officials of the Defendant Corporation hence they would not be able to protect the property of the plaintiff and plaintiff should seek remedy from the Court of law.
5. The cause of action for filing of the present suit was stated to have arisen on 08.02.1998 when the defendant's officials had tried to interfere and trespass in the suit property and damaged the rear boundary wall at point A as shown in the site plan and the defendants were still adamant to take law into their hands and the cause of action was still continuing on the date of filing of the suit. Suit No. 235/09 Page No. 4/25
6. Since the suit property was situated at Delhi and the cause of action had also arisen at Delhi and parties to the suit were also residing and working for gain at Delhi. Hence, this Court was stated to have jurisdiction to try and entertain the present case.
7. In the light of aforesaid facts and circumstances, it was prayed that by way of a decree of permanent injunction passed in favour of the plaintiff and against the defendant, its employees, agents etc. be permanently restrained from entering/trespassing or interfering in the peaceful possession and enjoyment of the plaintiff or causing any obstruction in repairing the boundary wall as shown at point A in the site plan of the suit property measuring 200 sq. yds bearing no. 1436/153, Bagh Raoji, Military Road. Opp. Hem Raj Jain Hospital, New Delhi110005 (New Municipal No. 76G, now known as Than Singh Nagar, Delhi). It was also prayed that by way of a decree of mandatory injunction passed in favour of the plaintiff and against the defendant Corporation and its officials they be directed not to cause any obstruction in carrying out the repair work of the boundary wall at point A in the site plan and further not to cause any further damage to any portion of the aforesaid suit property.
8. After service of summons, defendant/MCD had also duly appeared and contested the case on its merits and had filed its written statement on record, wherein it had taken preliminary objections that the suit was bad for want of notice under Section 477 and 478 of DMC Act. Further, it was stated that the suit of the plaintiff was without any cause of action against the defendant/MCD. Further, it was stated on behalf of the defendant that the suit was not Suit No. 235/09 Page No. 5/25 maintainable as the plaintiff had not impleaded Delhi Development Authority, which was the necessary party and as such the suit was liable to be dismissed for non joinder of necessary party. Further it was stated that the plaintiff had no locusstandi to file the present suit against the defendant.
9. On merits, the factual assertions made by the plaintiff in its plaint were denied by the defendant as wrong and incorrect.
10.To this written statement of MCD, the plaintiff had also filed his replication, wherein he had denied all the preliminary objections as wrong and incorrect and had reiterated and reaffirmed the factual assertions of his plaint as correct.
11.Subsequently, the Delhi Development Authority was also impleaded as defendant no. 2 in the present suit and was accordingly served with the summons of the suit. The defendant no.2/DDA had also duly appeared and contested the case on its merits and had filed its written statement on record, wherein it had submitted in reply to para no. 1 of the plaint that though the plot in question was leased to one Sh. Chottey Lal on monthly basis but it was cancelled on 30.11.1963. Para no. 2, 4 and 6 were stated to be matter of record and para no. 3 was stated to be wrong and false while para no. 5 and 7 to 15 were stated to be related to MCD.
12.To this written statement of DDA, the plaintiff had also filed his replication, wherein he had denied all the preliminary objections as wrong and incorrect and had reiterated and reaffirmed the factual assertions of his plaint as correct.
Suit No. 235/09 Page No. 6/25
13.On the pleadings of the parties, vide order dated 03.09.2003, the Ld. Predecessor of this Court was pleased to frame the following issues:
1. Whether the suit of the plaintiff is not maintainable for want of notice under Section 477/478 of DMC Act? OPD
2. Whether the plaintiff is entitled to the relief for permanent injunction as prayed for? OPP
3. Whether the plaintiff is entitled to the relief for mandatory injunction as prayed for? OPP
4. Relief.
14.In order to discharge the onus of respective issues, the plaintiff himself had appeared in the witness box as his own witness whereas defendants had examined one Ms. Meena Yadav, D.E.O. Education Department, Karol Bagh Zone, MCD as DW1 and Sh. Shiv Kumar Patwari from from DDA as DW2.
15.Ms. Manju Mehta, Ld. Counsel appearing for the plaintiff and Ms. Puja Kalra, Ld. Counsel appearing for the defendant/MCD had submitted that they had already filed written arguments on record and suit be disposed of on the basis of the same. I have gone through the said written submissions filed on behalf of the parties and my issue wise findings are as under:
ISSUE NO. 1
"Whether the suit of the plaintiff is not maintainable for want of notice under Section 477/478 of DMC Act? OPD" Suit No. 235/09 Page No. 7/25
16.The onus to prove this issue was upon the defendant and DW1 in his affidavit, filed in his examinationinchief Ex. DW1/A had also raised the similar plea in para no. 2 thereof. It is an undisputed fact that no injunction can be granted against the MCD unless it has been served with the notice of U/S 477 and 478 of DMC Act which is analogous to the provisions of Section 80 of the CPC. However, it has also been provided in Section 80 (2) CPC that when the relief of an urgent nature was sought to be claimed against the government and issuance of any such mandatory notice would have rendered the suit infructous, then in such circumstances of the case, a suit can very well be filed without serving a notice to the Government as stipulated under Section 80 of CPC. However, same has to be done only with the leave of the Court and further, the Court cannot grant any injunction without hearing both the parties. Hence, it cannot be stated that nonservice of any such notice upon MCD in order to seek a relief of an urgent nature may prove fatal for the case of the plaintiff. Therefore, the issue is decided against the defendant and in favour of the plaintiff.
ISSUE NO. 2 & 3 Issue No. 2 : "Whether the plaintiff is entitled to the relief for permanent injunction as prayed for? OPP"
Issue No. 3 : " Whether the plaintiff is entitled to the relief for permanent injunction as prayed for? OPP"
Suit No. 235/09 Page No. 8/25
17.Since both the issues are inter related having bearing on each other, hence they are taken up together for their disposal. Onus to prove these issues was upon the plaintiff and to discharge this onus plaintiff had proved on record site plan of the suit property as Ex.PW1/1 and rent receipt dated 07.09.1954 as Ex. PW1/2. The letter of DDA as Ex. PW1/3 in which DDA had admitted that the then Delhi Improvement Trust had executed a lease deed in favour of the predecessorininterest of the plaintiff in respect of the suit property having an area of 200 sq. yds. The plaintiff had also placed on record copy of the license issued in favour of Sh. Anand Prakash Gupta (since deceased) under the Delhi Coal Control Order 1955, as license no. 110 a copy of which was exhibited as Ex. PW1/4 and it was further submitted that subsequent to the expiry of the said license, the plaintiff had also moved an application for renewal of the same with the defendant Corporation vide his application Ex. PW1/5 and in response to which the defendant Corporation vide its letter dated 12.03.1969 Ex. PW1/6 had sought certain further information admitting that the plaintiff was running the business of coal depot in the suit property and was in possession thereof. The plaintiff had further placed on record rental receipt issued by DDA in favour of the plaintiff as Ex. PW1/7. The plaintiff had also placed on record application dated 21.08.1984 Ex. PW1/8, requesting DDA for execution of a perpetual lease deed in favour of the plaintiff. The plaintiff had also placed on record the latest revenue receipts showing payment of rental charges as Ex. PW1/9 and as per plaintiff, the said receipts showed that the plaintiff was attorned as a tenant in the suit property by the DDA after the death of his father late Sh. Chottey Lal. It was Suit No. 235/09 Page No. 9/25 further submitted that the defendant Corporation had no locus standi qua the suit property, so much so, the defendant Corporation had been receiving House Tax from the plaintiff in respect of the suit property and the plaintiff had placed on record House Tax receipt as Ex. PW1/10 to prove his case.
18.The plaintiff had also placed on record a copy of the notice of demand Ex. PW1/11 issued in the year 1990 by the defendant/MCD claiming property tax from the plaintiff qua the suit property. It was further submitted that the defendant Corporation wanted to dispossess the plaintiff by use of force from the suit property without having any locusstandi, so much so one Mr. Khan, a Junior Engineer of the defendant Corporation came to the suit property on 08.02.1998 accompanied by certain officials of the Education Department of the defendant - MCD and had caused damage to the portion of the boundary wall, a rear portion of the suit property as shown in the site plan Ex. PW1/12. The plaintiff had further submitted that against the aforesaid threat/act of the officials of the defendant Corporation, the plaintiff had lodged a complaint Ex. PW1/13 with the local police station, which was duly acknowledged by the local police station vide their seal at point X on the Ex. PW1/13. It was further submitted that the local police had also reached at the spot and had reprimanded the officials of the Education Department and other officers of the MCD who had collected at the site and were found causing damage to the rear boundary wall of the suit property. It was further pleaded that the license of the coal depot had been duly renewed from time to time which was evident from the document Ex. PW1/14. The plaintiff Suit No. 235/09 Page No. 10/25 had also placed a copy of revenue record including Jama Bandi Ex. PW1/15, which had shown that the defendant had no concern with the suit property and the plaintiff had also placed on record photograph Ex. PW1/16 showing his lawful possession of the suit property.
19.During tendering of the document Ex. PW1/14 was marked as Mark A. During his crossexamination by Ld. Counsel for the defendant Ms. Puja Kalra, it was deposed by the plaintiff's witness Sh. Ravinder Kumar Gupta that disputed property was shown in red colour in Ex. PW1/1 which had fallen in Khasra no. 1436/153 without mentioning its area nor there was any mention of the address or Khasra number in the rent receipt Ex. PW1/2. Even the temporary lease deed was also stated to have been returned to Delhi Improvement Trust and as such plaintiff was not even in possession of photocopy of the said lease deed. Even there was nothing to show any right in favour of the plaintiff in document Ex. PW1/3 as well. Late Sh. Chhoty Lal was stated to be the grandfather of PW1 but had expired on 16.11.1962 and Sh. Anand Prakash Gupta (present plaintiff) was his father who had expired on 25.11.1999. The address of the godown of the plaintiff was stated to be mentioned at point 5 on Ex. PW1/4. The said license was issued to the father of PW1 only for three months and subject to renewal by the MCD as per their prevalent policy at relevant point of time and Ex. PW1/5 was an application written by the plaintiff for renewal of his license to the MCD. PW1 could not furnish any proof to show the compliance of the requirements as mentioned in Ex. PW1/6. Ex. PW1/7 was admitted to be a receipt issued by DDA towards Suit No. 235/09 Page No. 11/25 recovery of damages from the plaintiff. Letter Ex. PW1/8 was stated to have been written by the present plaintiff to DDA for conversion of his temporary lease into perpetual lease. However, no notice was received from DDA for conversion. Ex. PW1/9 was stated to be receipt of damages recovered from the plaintiff by DDA. Quite contrary to his own claim, it was deposed by PW1 in his cross examination that house tax was wrongly paid by his father to MCD and he had never complied with the demand made by Ex. PW1/11 as it was wrongly raised upon him by the defendant no.1. It was further deposed by him that on 08.02.1998 once they had found the rear wall of the premises to be broken then inquiries were made by them from the School Chowkidar as well as other officials and contractors of MCD. The license for running a Coal Depot was stated to be issued in favour of his brother Sh. J.K. Gupta and not in the name of PW1 and as per Ex. PW1/15, the entire property falling in Khasra No. 1436/153 was stated to be belonging to DDA and the photograph Ex. PW1/16 was admitted to be not carrying any nameplate or display board claiming it to be a Coal Depot as deposed by PW1 in his examinationinchief. Formal suggestions were denied by him as wrong that the plaintiff had lodged a false report with the police or that the suit was false or that he was deposing falsely.
20.In rebuttal, defendant had examined one Ms. Meena Yadav working as D.E.O., Education Department, Karol Bagh Zone, MCD, who had filed in evidence, her examinationinchief by way of affidavit wherein she had reiterated the contents of written statement on solemn affirmation and had also placed on record Suit No. 235/09 Page No. 12/25 Jamabandi for the year 197273 as Ex. DW1/1 and inspection report in respect of the suit property filed by concerned Inspector as Ex. DW1/2 and copy of Immovable Property Register maintained with the MCD as Ex. DW1/3 and site plan as Ex. DW1/4 and it was claimed that the land in question belonged to MCD after its valid transfer by DDA into its favour and thus formed part of the school itself. During her crossexamination, she had stated that she was working in Education Department since 1981 when she was a School Inspector having her office at Shahadara. In 1990, she was transferred to Karol Bagh Zone having her office at Anand Parbat and in 1995 she was promoted to the post of DEO in the same Zone. She had never taught in the concerned school at Military Road but she was visiting the same sometime in between the year 1990 to 1994. However, exact dates and months of her visit could not be remembered by her. She had admitted it to be correct that main road of the school was not visible in photograph Ex. DW1/P1. However, she had denied the suggestion that the said photograph was depicting the rear side of the school and not the front side. It was further admitted by her that the children and employees working in the school used to enter from the main gate side of the same. She had further stated that there was a small gate towards the school at Military Road, which was not visible in the photographs because of the trees. MCD was stated to have been in possession of the suit property as it was a government land, which had been transferred to it. So far as the proof of possession was concerned, the witness had replied that the copy of Immovable Property Register was the only proof with her to show that the possession of the suit property was with the defendant/MCD and Suit No. 235/09 Page No. 13/25 besides that, there was no other document to show that the MCD was the owner of the suit property. Further it was admitted by her that the suit property comprising of Khasra no. 1436/153 was owned by the government of India but there was no record available with her department to show that the school was also situated in the same Khasra number. She had replied the question in negative regarding her visit having never been made through the gate at point A to A1 as shown in photograph Ex. DW1/P1. No wall was stated to be situated behind the point where the Maruti Van was shown parked in the aforesaid photograph. DW1 had never issued any Coal License in favour of the plaintiff nor she had any knowledge about its issuance by MCD as the matter was being dealt by the different department. Document Ex. PW1/4 was stated to be not belonging to her department and as per this witness even the copy of application Ex. PW1/5 was also not available in the official records of MCD. She had further denied the suggestion that MCD had issued the license for running a Coal Depot in favour of the plaintiff. She had also denied the suggestion that officials of MCD had caused damage to the suit property or that the suit property was let out to the plaintiff by DDA. She had expressed her lack of knowledge to tell as to whether the suit property was assessed to house tax in the name of the plaintiff or not or that the plaintiff had been issued a license by Food and Supply Department of Delhi Government at the same address because the property did not belong to MCD.
21.In her further crossexamination, she had stated that the photographs Ex. DW1/P1 and Ex. DW1/P2 were taken up by a Suit No. 235/09 Page No. 14/25 private photographer at the instance of School Inspector Ms. Kamlesh and she was not in possession of their negatives and further it was deposed by her that she was not in possession of any sanctioned plan of the building of school in her possession nor she had any knowledge as to whether the land was shown in the sanctioned plan as a playground belonging to the school or not nor she had brought any layout plan of the said school. Suit property was stated to be a Kacha structure without any flooring. No store room was stated to be situated in the property and she had no knowledge as to whether any store room was ever in existence at the said property before her tenure. A suggestion was also denied by her that there was no store room in existence at the said property and by way of putting this suggestion to the witness, the plaintiff has destroyed his own case as this suggestion was entirely contrary to his own case wherein he was claiming to be having a godown/store room in the property. It cannot be even regarded as a typographical error because no application for correction thereof was ever moved at any subsequent stage on behalf of the plaintiff for getting the same rectified/corrected.
22.DW2 is one Sh. Shiv Kumar Patwari, who had placed on record Ex. PW1/1 which is Khasra Jamabandi for the year 197273 and Aksh Shajra as Ex. DW2/1. During his crossexamination, it was deposed by him that he had only brought the summoned record and had no personal knowledge about the facts of the case.
23.Today I have also heard Ld. Counsels appearing for the parties as well as perused the written submissions filed by them on record. Suit No. 235/09 Page No. 15/25
24.In his written submissions filed on record, it has been contended by the plaintiff that in her crossexamination DW1 had admitted that she had been working in Education Department only from the year 1981 and she was working at Shahdara and it was only in the year 1990 when she was transferred to Karol Bagh Zone as School Inspector and she was promoted to the post of DEO in Karol Bagh Zone in the year 1995. It was further submitted that DW1 had further admitted that she had never worked in the school which was adjacent to the Military Road, which was the rear side. It was further submitted that DW1 for the first time had visited the said school in the year 1990 and the witness clearly admitted that the defendantCorporation had no other document except Ex. DW1/3 claiming their ownership of the suit property in possession of the plaintiff. It was stated that the said document Ex. DW1/3 placed on record was the copy of Register of the Immovable Properties maintained by MCD and it was not the record of the ownership and further it had not contained the number of the suit property, which was in occupation of the plaintiff. It was stated that the said property was a part of Khasra No. 1436/153 and the defendant had categorically admitted that "It is correct that vide Ex. DW1/1 the suit property comprises of Khasra No. 1436/153 and is owned by the Government of India". It was further stated that DW1 further admitted that there was no record with the Education Department that the school of the Corporation was in Khasra No. 1436/153 and further admitted that the document Ex. DW1/3 brought by her did not relate to Khasra No. 1436/153. It was further stated that to a specific question to the DW1 that she wrongly stated in her examinationinchief that any license had been issued, the witness Suit No. 235/09 Page No. 16/25 stated that she did not know because the licensing department of the MCD dealt with the issue of license. It was further submitted that DW1 did not deny the document Ex. PW1/4, the license issued in favour of the plaintiff and had also admitted the documents Ex. PW1/5 and Ex. PW1/6 and all the documents placed on record by the plaintiff. It was further submitted that DW1 had categorically stated that she worked in the Education Department and she was not aware of any other department of the Corporation which maintained such record and used to issue licenses.
25.It was further submitted that the DW2 instead of supporting the case of the defendant, supported the case of the plaintiff wherein he categorically admitted that the suit property belonged to the Government of India and not to the MCD. It was further submitted that the DW2 also admitted that the suit property formed part of Khasra no. 1436/153 and in support of that he had filed a copy of Aks Shajra Ex. DW2/1. It was further submitted that the defendant no. 2/DDA having admitted the ownership of suit property and the plaintiff as a lawful occupant of it, did not lead any evidence.
26.On the other hand in the written submissions filed on behalf of the defendants, it has been contended that as per the admitted case of the defendant no.2/DDA, which was never controverted by the plaintiff herein that the property in question was leased out to one Sh. Chhotey Lal on monthly basis which was also cancelled on 30.11.1963 and the aforesaid plot was about 200 sq. yds. which was given on temporary lease for commercial use but at present the Suit No. 235/09 Page No. 17/25 property was now entered into damaged section of DDA and there was no perpetual lease deed executed between Sh. Chhotey Lal and DDA and as per the file no. L15 (53) 54 & L5 (271A) 62, the said lease was on monthly basis which too was cancelled on 30.11.1963. After death of Sh. Chhotey Lal, the damages were transferred to his son Sh. Anand Prakash Gupta and the receipts which have been placed on record by the plaintiff were the receipts for recovery of damages issued by DDA to the unauthorized occupant, which means that by placing those receipts on record, the plaintiff himself had admitted his possession to be unauthorized in nature, for which DDA was also recovering the occupational charges/damages from him and it is the settled position of law that only a person having a legal right to remain in possession can pray for an injunction for protection of his possession and not an unauthorized occupant thereof. So far as Ex. PW1/8 was concerned it has been contended and submitted on behalf of the defendants that plaintiff had miserably failed to place on record any proof of its dispatch, hence it cannot be presumed that the aforesaid letter was ever dispatched by him to its addressee. Further, it has been stated that the plaintiff had not been able to place on record any current document showing his possession in respect of the suit property for the existence of a store room/godown as contended by him throughout in his plaint and the room shown in photograph Ex. PW1/6 also nowhere shows that it was a godown/store room of Coal under possession and occupation of the plaintiff. So far as the allegations of breaking open of locks by the officials of MCD are concerned, it had been submitted that the failure of plaintiff to examine the aforesaid witnesses from whom the alleged inquiries Suit No. 235/09 Page No. 18/25 were made by him shall prove fatal for his case and hence, he had failed to prove on record even by preponderance of probabilities that the wall was broken by the officials of MCD. It was also contended that under the garb of injunction, the plaintiff was trying to seek a declaration of his title with respect to the suit property. It was further stated that the plaintiff himself being an unauthorized occupant had no locusstandi to file the present suit against MCD in respect of the suit property which already stood transferred in its favour by the DDA as per entries made in IP Register which was also corroborated by Ex. DW1/1 showing it to be the government land. Besides this the defendant has also placed reliance on the following citations:
2003 III AD (Delhi) 303 titled as Aishya Jalal vs. LG & others, wherein it has been held by Hon'ble Mr. Justice Sanjay Kishan Kaul that mere payment of damages does not create any right in favour of the petitioner and thus the respondent had every right to proceed against the unauthorized occupant of the government land (para 14 emphasis supplied).
2003 V AD (Delhi) 149 titled as Zafar Sadiq and Others vs. DDA wherein it was held that payment of damages itself under the PP Act does not create a right in favour of the petitioner as it only implied that the petitioner was in unauthorized occupation of the land, for which he was being charged and thus had no right, title or interest and was not entitled to any protection and was liable to be evicted from the land in question.
Suit No. 235/09 Page No. 19/25 S. Harjit Singh Gill vs. Speedways Service Center Petrol Pump and others 45 (1991) DLT (SN) 7 wherein it has been held that a licencee cannot seek relief of injunction after termination of his licence.
Further reliance has been placed on Associated Hotels of India vs. R.N. Kapoor, AIR 1959 SC 1262 wherein the definition of lease and license was propounded by Hon'ble Apex Court and it was held that if a document permitted another one to make use of the property of which the legal possession continued with the actual owner, then it was a license.
Reliance has also been placed on Section 52 of Easement Act, which provides that grant of permission by a person to other, a right to do or continue to do in or upon the immovable property of the granter something, which would in the absence of such right be unlawful, the right so conferred is license and further it was held in (1998) 1 Mad. L.J. 601 that a person in unlawful possession which has not ripened into title was therefore not entitled to injunction and it was held in (1995) 2 Civil Law Journal 706 that there must be a lawful possession to which a person claiming injunction is entitled to.
27.In her additional written submissions filed on record, Ld. Counsel Ms. Puja Kalra has further placed reliance on the following citations:
Suit No. 235/09 Page No. 20/25
AIR 1986 Karnataka 77, K.V. Narain Vs. Sharana Gowda, wherein it has been held that a trespasser or encroacher is not entitled to any relief as against the true owner. 45 (1991) DLT (S.N.) 7 and AIR 1978 Delhi 174 F.B., wherein it has been held that in case of license, no interest is created in property by the guarantor in favour of the licencee and that is why licensee cannot seek the relief of injunction after termination of such licence.
54 (1994) DLT 484 Rajinder Kakar and Others vs. DDA, wherein it has been held that courts must be satisfied that there is any tangible evidence that the plaintiff's or the applicant's have a legal title to the property or a right to remain in possession thereof.
Where a person is an encroacher and never had any right to legal possession of public land, the courts should not grant any injunction or relief, which will have the result of permitting or protecting the continued illegal occupation of public land. Reliance has also been placed on RSA 1142 of 2011 in case Chand Singh Through LRs vs. Gangadhar before Punjab and Haryana High Court by Justice M.M. Kumar, Om Prakash vs. State of Haryana, R.S.A. No. 11379/1997 by Hon'ble Justice Satpal, Punjab and Haryana High Court 2005 MCC 406 Bombay High Court by Hon'ble Mr. Justice, R.M.S. Khandeparkar and Mr. Justice V.M. Kanade in the case titled as Shriram Ramphal Patel vs. Municipal Corporation of Greater Bombay and others and Bakshi Ram Vs. DDA in 1995 32 DRJ High Court of Delhi. Suit No. 235/09 Page No. 21/25
28.Hence, in the light of aforesaid submissions, it had been prayed that the suit of the plaintiff was liable to be dismissed with exemplary costs as he had miserably failed to prove his possession as well as title in respect of the suit property.
29.Per contra, it was submitted by Ms. Manju Mehta, Ld. Counsel appearing for the plaintiff that except for the copy of Immovable Property Register allegedly maintained by the MCD, it had also failed to prove its own right, title or interest in respect of the suit property and hence, right to take away the possession from the plaintiff, if any, would have accrued to DDA alone and MCD cannot poke its nose in between the affairs between the plaintiff and the DDA. However, in reply to the aforesaid submissions, Ld. Counsel for the MCD had relied upon the provisions of Section 493 DMC Act, 1957 which is reproduced here as under:
"Admissibility of document or entry as evidence A copy of any receipt, application, plan, notice, order or other document or of any entry in a register in the possession of any municipal authority shall, if duly certified by the legal keeper thereof or other person authorized by the Commissioner in this behalf, be admissible in evidence of the existence of the document or entry, and shall be admitted as evidence of the matters and transactions therein recorded in every case where, and to the same extent to which, the original document or entry would, if produced, have been admissible to prove such matters and transactions."
30.In the light of the aforesaid Section, it had been stated that the certified copy of Immovable Copy Register was therefore, duly Suit No. 235/09 Page No. 22/25 admissible in evidence and same was thus sufficient to prove the transfer of possession and title of the property in favour of the MCD by the DDA.
31.Further, Ld. Counsel for the plaintiff had placed reliance on the judgment of our own Hon'ble High Court in case titled as Municipal Corporation of Delhi Vs. Parshottam Lal Gupta and Another, RSA No. 110/03 decided on 09.12.2010 by Hon'ble Ms. Justice Indermeet Kaur, J. However, with due respect, it is submitted that the ratio of the said judgment is not applicable to the facts of the present case and the same are distinguishable because in the cited case MCD had failed to prove on record by adducing any evidence that possession of land was transferred to it which is not the case in hands.
32.Secondly, reliance had also been placed on 1994 S.C. Online case No. 349, Pt. Chet Ram Vasisth (deceased) through LRs Vs. MCD, wherein it has been held that MCD cannot claim title in the property unless it has been properly acquired and compensation has been paid to the owner. Corporation may have the right of the management of such property of public use as a custodian in the public interest but merely being a custodian does not confer any title in the property, Corporation can get it transferred only in accordance with law. However, I must hold here that the judgment as cited and relied upon by the plaintiff does not even touch upon the controversy involved in the case.
Suit No. 235/09 Page No. 23/25
33.After appreciation of the evidence adduced on behalf of both the parties as well as careful perusal of documents placed and proved on record by them, I have no hesitation in holding that the plaintiff in the present case had miserably failed to prove the fact that his temporary lease was ever converted into a perpetual lease by the DDA or that erstwhile owner Delhi Improvement Trust at any time whatsoever. Further more, so far as the plea regarding running of Coal Depot under the license of MCD was concerned, though the documents have been filed by him pertaining to 1960's but no such recent Coal license documents have been placed by him on record, for which period immediately preceding the date of institution of the suit to show that even on the date of filing of the suit, the plaintiff had been running a Coal Depot or godown from the premises as alleged. So far as the deposition regarding payment of damages by the plaintiff to the DDA is concerned, as already discussed above in the citations relied upon by the defendant, mere payment of damages do not confer any right, title or interest in favour of the plaintiff in respect of the property. Hence, I have no hesitation in holding that the plaintiff had miserably failed to make out any case in his favour, which would have entitled him to the reliefs of injunctions as claimed by him in the present suit. Both these issues are thus answered in negative and decided accordingly in favour of the defendants and against the defendants. ISSUE NO. 4 (RELIEF)
34.In view of my findings on the issue no. 2 & 3 above, the plaintiff is not entitled to any of the reliefs claimed in the present suit. Hence, suit of the plaintiff is dismissed. No order as to costs. Suit No. 235/09 Page No. 24/25
35.Decree sheet be prepared accordingly.
36.File be consigned to Record Room.
Announced in the open Court today the 21st May, 2012.
(LOKESH KUMAR SHARMA) JSCCCumASCJCum GUARDIAN JUDGE (West) 21.05.2012 Suit No. 235/09 Page No. 25/25