Delhi District Court
Suchitra Chandra vs . Dda. on 25 February, 2013
Suchitra Chandra Vs. DDA.
IN THE COURT OF SHRI J.P.S. MALIK : ADDITIONAL DISTRICT JUDGE04 :
SOUTH DISTRICT : SAKET COURT COMPLEX, NEW DELHI
CS. NO. 311/12
In the matter of :
Suchitra Chandra
W/o Sh. Akhilesh Chandra
R/o House No. 25 and 25/2,
Lado Sarai Extension, Tehsil Hauz Khas
(Mehrauli), New Delhi .....Plaintiff
Versus
Delhi Development Authority
Through its Vice Chairman
Vikas Sadan, INA
New Delhi ....Defendant
Date of institution of case : 16.07.2012
Date of Reserving order : 21.02.2013
Date of Judgment : 25.02.2013
Judgment
1. Plaintiff, Suchitra Chandra, filed a suit for permanent injunction
claiming that she was the sole and absolute owner of property bearing
no. 25 and 25/2, situated in Lado Sarai Extension comprising in Khasra
No. 689/533/199 (Old Abadi Deh) the revenue estate of village Lado
Sarai, Tehsil Hauz Khas (Mehrauli) New Delhi, to be called the suit
property hereinafter.
CS. No. 311/12 Page 1 of 10
Suchitra Chandra Vs. DDA.
2. The facts in brief, as per the plaint filed, are that suit property was
purchased by the plaintiff in year 2000 from erstwhile owner M/s. Gagan
& Company through its Director, Smt. Sudha Dang for valuable
consideration and property had been purchased by M/s. Gagan &
Company from one Narender Nagpal. Plaintiff is claiming that ever since
the day of purchase of the suit property, the plaintiff alongwith her
family is in continuous/ peaceful and uninterrupted possession. Few
years later on, local residents of the colony and neighbours of the
plaintiff, formed a registered association named "Lado Sarai Welfare and
Cultural Association" with its registered office at G316, Ist Floor, Old
M. B. Road, Lado Sarai, New Delhi30 and as per the Government Policy,
the association applied for regularization of their colony under the
name 'Lado Sarai Extension'. A formal list of 1071 colonies were prepared
by Government Agency containing the names of the colonies which
were to be considered for regularization and the name of the plaintiff's
colony i.e Lado Sarai Extension, featured at serial no. 413. A few weeks
earlier to the filing of the suit, officials of defendant no. 1/ DDA came to
the suit property, were making measurements and demarcation and had
told the plaintiff that suit property shall be demolished within 34 days.
3. Plaintiff filed a suit in the court of Ld. Senior Civil Judge, Saket Courts
and in those proceedings, after DDA entered the appearance, the
CS. No. 311/12 Page 2 of 10
Suchitra Chandra Vs. DDA.
plaintiff came to know that erstwhile owner of the suit property namely
Narender Nagpal and Smt. Sudha Dang (Director of M/s. Gagan and
Company) had filed Writ Petition (C) 4831/2005 seeking protection from
demolition of suit property. Plaintiff is claiming that it was in the
proceedings before Ld. Senior Civil Judge, Saket Courts that he came to
know that said Writ Petition was dismissed by Hon'ble High Court of
Delhi vide order dated 23.03.12 and it was on the ground that the
petitioner therein i.e Narender Nagpal and Smt. Sudha Dang were not
able to show that the suit property was in Lado Sarai Extension. Letter
Patent Appeal 336/2012 assailing the order passed in Wirt Petition (C)
4831/2005 was dismissed as withdrawn on 11.05.12. Plaintiff is claiming
that she was neither aware nor was party to the said Writ Petition before
Hon'ble High Court claiming that plaintiff is having documents like
telephone bill, electricity bills and House Tax Receipts to show that suit
property falls in Lado Sarai Extension. The property in question was
acquired by Government vide award 36/8081 (main and supplementary
award) but the built up areas were not acquired and were left to be
acquired later on. It is being claimed that suit property is a built up area
and so, was not acquired and possession not taken over by Government.
4. Plaintiff has also taken an alternative plea stating that even if it is
assumed that suit property is covered by award 36/8081 (main and
CS. No. 311/12 Page 3 of 10
Suchitra Chandra Vs. DDA.
supplementary award) even then, as per the decision of Lieutenant
Governor of Delhi, communicated vide letter dated 11.09.07 to the effect
that in view of the policy decision to regularize colonies, as per survey
which had been carried up by the Divisional Commissioner, whether
built up or not will not be now taken over by the Government. The
plaintiff has also claimed that suit property is also entitled for protection
under the National Capital Territory of Delhi Laws (Special Provisions)
Second Act, 2011.
5. The stand taken on behalf of the defendant/ DDA was that suit property
bearing no. 25 and 25/2, Lado Sarai falls in Khasra No. 689/533/199/12
MIN (010) and in village Lado Sarai. The suit land stands acquired vide
award no. 36/8081 and the plaintiff had unauthorisingly and illegally
occupied the suit land. It is also the case of the defendant that suit
property is not a part of Lado Sarai Extension. Suit land could not be
handed over to the DDA by L & B Department/LAC, since same was a
built up area and subsequently due to the land being under a stay order
in WP (C) no. 2965 of 2002. It is claimed that plaintiff is a mere
unauthorized encroacher and trespasser. It is also the case of the
defendant that land in question is surrounded by vacant DDA acquired
land and the same does not form part of any unauthorized colony due
for regularization, thereafter details about the proceedings before
CS. No. 311/12 Page 4 of 10
Suchitra Chandra Vs. DDA.
Hon'ble High Court vide Writ Petition filed by Narender Nagpal and
another being WP(C) no. 4831/2005 as discussed above has been
referred to. It was also claimed on behalf of the defendant that the list of
1071 unauthorized colonies referred to by the plaintiff does not have
relevance/ significance, since subsequent to Government of India order
dated 10.02.04, a press advertisement was published in October 2004 by
Government of Delhi clarifying that the unauthorized colonies whether
figuring in the list of 1071 unauthorized or not, were required to apply
again and no regularization of unauthorized colonies would be
considered, if they fail to apply afresh. It is the case of the defendant that
suit filed by the plaintiff is barred by resjudicata, since the issue as
regards the suit property situated in the area of Lado Sarai or Lado Sarai
Extension has already been decided by Hon'ble Delhi High Court in Writ
Petition (C) No. 4831/2005 and Writ Petition(C) no. 5914/2007 vide a
common judgment dated 23.03.2012. It is also the case of the defendant
that a Writ Petition was filed before Hon'ble High Court of Delhi bearing
WP (C) No. 2965/2002 challenging the acquisition of the land and said
Writ Petition captioned Narender Nagpal & Anr. Vs. DDA and Ors. was
dismissed by Hon'ble High Court on 12.05.03 and a Special Leave
Petition SLP (Civil) No. 11318/2003 against the order of dismissal was
dismissed by Hon'ble Supreme Court on 03.01.05.
CS. No. 311/12 Page 5 of 10
Suchitra Chandra Vs. DDA.
6. Issues were framed in the matter on 05.10.12 and issues no. 1 and 2 were
directed to be treated as preliminary issues, which reads as under:
1. Whether the suit filed by the plaintiff is not maintainable
on ground of res judicata U/s 11 CPC ? OPD
2. Whether the suit has been filed by the plaintiff without any
cause of action ? (OPParties)
7. Arguments were heard on behalf of both the parties on the preliminary
issues framed in the matter and I hold as under:
8. Issue No. 1
Whether the suit filed by the plaintiff is not maintainable on ground of
res judicata U/s 11 CPC ? (OPD)
It is the admitted case of both the parties that vide Writ Petition (Civil)
2965/2002, Narender Nagpal, predecessor in interest of the plaintiff in
the present proceedings, had challenged the acquisition of the suit
property bearing Municipal No. 25 and 25/2, Lado Sarai comprising in
Khasra no. 689/533/199/12 MIN (010) village Lado Sarai. It was the
case of Sh. Narender Nagpal, in those proceedings, that land in question
has been purchased by him after notification under the Land
Acquisition Act, who had requested that in view of the policy made by
Government, respondents be restrained/ prohibited from demolishing
CS. No. 311/12 Page 6 of 10
the building constructed on the said land. The Writ Petition was dismissed with the observation that in the instant case, there was no question of considering the application, as the petitioner has no right whatsoever over the property in question. This was the order dated 12.05.03 passed by Hon'ble High Court. SLP against the said order was dismissed by Hon'ble Supreme Court vide order dated 03.01.05 as per SLP (Civil) no. 11318/2003.
Vide order dated 23.03.12 in WP (C) 4831/2005, it was held by Hon'ble High Court of Delhi that said land falls in village Lado Sarai, which stood acquired and challenge to the said acquisition by the petitioner had already failed. It was further held by Hon'ble High Court of Delhi in the said case, that the petitioners cannot now succeed in second round of litigation by projecting that the said land does not fall in Lado Sarai but in the unauthorized colony of Lado Sarai Extension, which is the subject matter of regularization process.
The matter in issue in the present suit filed by the plaintiff is also whether the suit property bearing no. 25 and 25/2 situated in Tehsil Hauz Khas (Mehrauli) New Delhi falls within the limit of colony of Lado Sarai Extension bearing Khasra No. 689/533/199 (Old Abadi Deh) and the suit property is protected under the National Capital Territory of Delhi Laws (Second Provisions) Second Act, 2011. The issue has already been decided by Hon'ble High Court of Delhi in Writ Petition No. CS. No. 311/12 Page 7 of 10 Suchitra Chandra Vs. DDA.
483/2005 when it was held that property bearing no. 25 and 25/2 falls within limits of Lado Sarai and is not a part of Lado Sarai Extension, a colony under consideration for regularization. The issue in the present proceedings as regards the situation of property no. 25 and 25/2 in Khasra No. 689/533/199 (Old Abadi Deh) falling in Lado Sarai or Lado Sarai Extension, was directly and substantially in issue in the previous suit i.e proceedings before Hon'ble High Court of Delhi vide Writ Petition (Civil) No. 4831/2005 and has been heard and decided on merits. The case law being a case titled as Hoshiar Singh Mann & Ors Vs. Charan Singh & Ors. 162 (2009) Delhi Law Times 208 and another case titled as Sonu Seth Vs. Suresh Seth 171 (2010) Delhi Law Times 597, has no application to the facts of the present case. Accordingly, it is held that suit filed by the plaintiff is barred by principle of res judicata and this issue is decided in favour of the defendant and against the plaintiff.
9. Issue No. 2 Whether the suit has been filed by the plaintiff without any cause of action ? (OPParties) In support of its case, the plaintiff has relied upon a case decided by Hon'ble Delhi High Court titled as Texem Engineering Vs. Texcomash Export 179 (2011) Delhi Law Times 693 (DB), wherein it was held that CS. No. 311/12 Page 8 of 10 Suchitra Chandra Vs. DDA.
so long as, plaint discloses some cause of action which requires determination by court, same cannot be rejected on the ground that in the opinion of the judge that plaintiff may not succeed.
Plaintiff has also placed reliance on another case decided by Hon'ble Delhi High Court titled as B. Rath Vs. David Ball & Ors. 138 (2007) Delhi Law Times 284 and it was argued that a cause of action is a bundle of facts necessary for plaintiff to prove in order to succeed in suit and it was further held that power to reject the plaint can be exercised only, if the court come to the conclusion that even if all the allegations are taken to be proved, the plaintiff would not be entitled to any relief, whatsoever. It was also observed by Hon'ble High court of Delhi in said case that court, cannot look at the defence of the defendant or the documents relied upon by the defendant.
10. The case of the plaintiff is that property no. 25 and 25/2 are situated in Lado Sarai Extension, comprising in Khasra No. 689/533/199 (Old Abadi Deh) the Revenue Estate of village Lado Sarai, Tehsil Hauz Khas (Mehrauli) New Delhi. First the challenge was made by Sh. Narender Nagpal, a predecessor in interest of the plaintiff, to the acquisition of the suit property vide award no. 36/8089, wherein it was unsuccessful right up to Hon'ble Supreme Court. Again, Sh. Narender Nagpal had agitated the matter before Hon'ble High Court vide WP (C) no. 4831/2005 on the CS. No. 311/12 Page 9 of 10 Suchitra Chandra Vs. DDA.
ground that suit property falls in unauthorized colony of Lado Sarai Extension and not in Lado Sarai, wherein it was held that suit land does not fall in colony of Lado Sarai Extension but in Lado Sarai. It is not open to the plaintiff now that the matter which has been agitated by predecessor in interest of the plaintiff and decided finally to file a fresh suit on some cause of action, based on same facts after twisting the language here and there, in the sense that the suit property which, was earlier a part of Lado Sarai, is now a part of unauthorized colony of Lado Sarai Extension. As such, the plaintiff also has no cause of action to file the present suit, when the issue in question has already been disposed of, in the earlier proceedings as noted above between the predecessor in interest of the plaintiff and the defendant. This issue is also decided against the plaintiff and in favour of the defendant and it is held that plaintiff has no cause of action to file the present suit.
11. In view of my findings as regards preliminary issues no. 1 and 2, it is held that plaintiff has no cause of action to file the present suit and the present suit is also barred by principle of res judicata. The suit filed by the plaintiff is dismissed with costs. Decree be drawn accordingly.
Announced in the open Court (J.P.S. MALIK) on 25.02.2013 ADJ04 : SOUTH DISTRICT All pages signed NEW DELHI CS. No. 311/12 Page 10 of 10 Suchitra Chandra Vs. DDA. CS. No. 311/12 25.02.2013 Present: Plaintiff in person. Counsel for the defendant.
Vide separate judgment of the date, the preliminary issues no. 1 and 2 are decided against the plaintiff and it is held that suit filed disclosed no cause of action and also is barred by principle of res judicata. Suit filed by the plaintiff is dismissed with costs. Decree be drawn accordingly.
File be consigned to record room.
(J.P.S. MALIK) ADJ04 : SOUTH DISTRICT NEW DELHI : 25.02.2013 CS. No. 311/12 Page 11 of 10