Delhi District Court
Sh Ravinder Kumar Sejwal vs Delhi Development Authority on 21 February, 2007
IN THE COURT OF SH. BABU LAL : ADDL. DISTRICT JUDGE
DELHI
S-103/05
Sh Ravinder Kumar Sejwal
Sh Vijender Kumar Sejwal Plaintiffs
Versus
Delhi Development Authority Defendant
JUDGMENT
1. Plaintiffs have filed the present suit against the defendant for permanent and mandatory injunction. Facts as alleged in the plaint are that plaintiffs are joint owners of property situated at Khasra No 225, Village Lado Sarai, New Delhi ( hereinafter referred to as said property) and they have inherited the same from their father and forefathers who have been using the same for more than 100 years. Defendant is alleged to have acquired land lying on the eastern and southern side of the said property in the year 1980. In the year 1983-84, DDA is alleged to have constructed flats on Northern and North- Eastern side of the said property and path as shown in red in the site plan which was already existing and used by residents of village Lado Sarai as an approach to the village was left by the defendant. It is alleged that said path as shown in red in side plan is a pucca road upto water pump and thereafter it is around 8 meter wide kacha road which leads to village Lado Sarai and is bifurcated and leads to said property of the plaintiffs. It is 1 alleged that path/ road as shown in red is the only approach road which leads to property of the plaintiffs and there is no other way to their property. In May, 2000, plaintiffs noticed that a lot of building material was being dumped on the open DDA land lying towards Eastern side of the said property of the plaintiffs and thereafter officials of the defendant along with labourers also arrived and started erecting a boundary wall on the said ''DDA open land''. When the plaintiffs and other residents of the village objected to it, they threatened that they would come with the police force and would erect the boundary wall. It is alleged that since plaintiff/ their forefathers have been using the said Rasta as an approach to their property for more than 100 years and have thus acquired easementary rights therein and if defendant is allowed to erect the boundary wall, it will block the approach to the property of the plaintiffs. It is alleged that there is no other approachable road to the southern side of the village, therefore, in case of an emergency like outbreak of fire or some medical emergency, such help would be blocked for the residents of the said village. Therefore, a decree of permanent injunction and mandatory injunction restraining the defendant from blocking the said approach as shown in red in site plan and leave the said approach open has been prayed for.
2. On the other hand, case of the defendant is that defendant has acquired the land surrounding village Lado Sarai including the alleged open land on which plaintiffs have falsely claiming easementary rights. It has been denied that plaintiffs as well as other residents of the village have been using the said Rasta for the last more than 100 years. It has also been denied 2 that there is no approach/ path except the open land available to the plaintiffs/ residents of the village. It is alleged that defendant had constructed the boundary wall to protect the acquired land from the encroachers and trespassers and no injunction can be given against true owners of the property. It has been denied that any fencing made by the DDA would block any road or disturb the possession of the plaintiffs. It is alleged that since the land belongs the DDA , plaintiffs have no right, title or interest therein, therefore, their suit is liable to be dismissed.
3. In the replication, plaintiffs have reiterated and reaffirmed all the facts as alleged in the plaint and denied all the facts as embodied in the written statement.
4. On the basis of pleadings of the parties, following issues are framed :-
(1) Whether the suit is maintainable ?
(2) Whether the plaintiff is entitled to the relief as prayed for ?
(3) Relief.
5. In order to prove their case, plaintiffs have filed their affidavit and have also examined one more witness, namely, Ram Singh. On the other hand, on behalf of defendant, affidavit of Sh Raj Kumar Yadav, Patwari and P.T.Varghese, Asstt Engineer have been filed who have been cross examined as DW- 1 and DW-2.
6. I have heard ld counsels for the parties and have carefully gone through record of the case. My issuewise findings are as under :-
Findings on issue No 1 3 Issue No1 is whether the suit is maintainable ? Case of the defendant in preliminary objection taken the written statement was that suit is barred U/s 53 B of the Delhi Development Act inasmuch as suit has been instituted without giving any notice, therefore, same is liable to be dismissed. It is also case of the defendant that present suit has been filed seeking injunction in respect of public land in which plaintiffs have no right, title or interest, therefore, suit is liable to be dismissed. On the other hand, case of the plaintiffs is that they have filed the present suit to claim injunctary relief to enforce their easementary rights inasmuch as there is imminent danger thereto from the side of the defendant.
7. No evidence has been led on this issue either by the plaintiffs or defendant.
8. It has been argued on behalf of the defendant that no notice as contemplated U/s 53 B of DD Act was given by the plaintiffs before filing of the suit, therefore, present suit is not maintainable.
9. On the other hand, ld Ld counsel for the plaintiffs has argued that no such notice was required because the suit is basically for the relief of injunction which is of urgent nature and if the notice had been given the very purpose of the suit would have been defeated.
10. U/s 53 B(1) of DD Act, suit against DDA can not be instituted unless a notice stating the cause of action and the particulars mentioned in the said section is given by the plaintiffs to the DDA before filing the suit. However, sub section 3 is in the nature of exception to this general rule. According to this 4 section provisions of section 53B(1) would not apply to suit in which only relief claimed is an injunction of which object would be defeated by giving of a notice or the postponment of institution of the suit.
11. In the present suit, only relief claimed is a relief of injunction. The DDA had taken possession and according to the plaintiffs was obstructing the alleged right to way of the plaintiffs. Certainly if the notice had been given, the very purpose of the suit would have been defeated. Therefore, I am of the view that in view of section 53 B (3) of the DD Act, suit is not bad on account of absence of notice U/s 53B (1) of the said Act. This issue is accordingly decided.
12. Findings on issue No 2 Issue No 2 is whether the plaintiff is entitled to the relief as prayed for ? Onus of this issue was on the plaintiffs. Case of the plaintiffs is that since defendant has violated easementary rights of the plaintiffs, therefore, they are entitled for injunction as prayed for. On the other hand, case of the defendant is that since plaintiffs have no right,title or interest in the property in dispute and same belongs to the defendant, therefore, no relief can be given to them.
13. PW-1 Ravinder Kumar Sejwal and PW-2 Sh Vijender kumar Sejwal in their affidavits have deposed that they are joint owners of property situated at Khasra No 225, Village Lado Sarai, New Delhi and they have inherited the same from their father and forefathers who have been using the same for more than 100 years. Site plan of property of the plaintiffs has been proved as Ex PW1/1 wherein their property has been shown in 5 green colour. Defendant is deposed to have acquired land lying on the eastern and southern side of the said property in the year 1980. In the year 1983-84, DDA is alleged to have constructed flats on Northern and North-Eastern side of the said property and path as shown in red in the site plan which was already existing and used by residents of village Lado Sarai as an approach to the village was left by the defendant. It is deposed that said path as shown in red in side plan is a pucca road upto water pump and thereafter it is around 8 meter wide kacha road which leads to village Lado Sarai and is bifurcated and leads to said property of the plaintiffs. It is deposed that path/ road as shown in red is the only approach road which leads to property of the plaintiffs and there is no other way to their property. In May, 2000, plaintiffs noticed that a lot of building material was being dumped on the open DDA land lying towards Eastern side of the said property of the plaintiffs and thereafter officials of the defendant along with laourers also arrived and started erecting a boundary wall on the said ''DDA open land''. When the plaintiffs and other residents of the village objected to it, they threatened that they would come with the police force and would erect the boundary wall. Photographs of the disputed property have been proved as Ex PW1/2 to PW1/15. It is deposed that since plaintiff/ their forefathers have been using the said land as an approach to their property for more than 100 years and have thus acquired easementory rights therein and if defendant is allowed to erect the boundary wall, it will block the approach to the property of the plaintiffs and as there is no other approachable road to the southern side of the village, therefore, in case of an emergency 6 like outbreak of fire or some medical emergency, such help would be blocked for the residents of the said village. It is deposed that plaintiffs are entitled for the relief of permanent and mandatory injunction. PW-1 in his cross examination has specifically admitted that Rasta as shown mark X to X-1 in Ex PW1/1 is part of the DDA land. He has also admitted that there is a separate rasta to the village which coincides at point Y in Ex PW1/1 and that comes from the village to that point. PW-2 Sh Vijender Kumr Sejwal in his cross examination has also admitted that land shown in red as Rasta in Ex PW1/1 has been acquired by the Government to the DDA. But he added that Rasta shown in red existed right from his childhood. His has also stated that there are number of Rastas for the village. He has also admitted that they did not file any objection regarding rasta land when the land was under acquisition, nor did they file any suit challenging the acquisition award.
14. PW-4 Sh Ram Singh ( actually it should have been PW-3 inasmuch as no witness of this number has been examined). However, this witness would be read as PW-4 only documents have been exhibited in his affidavit s Ex PW4/1 to PW4/5). Mutatis mutandis this witness has also deposed to the same effect as Pws 1 & 2 deposed that plaintiffs and their forefathers have been using the suit property for the last more than 100 years; there is an only approach road to reach village Lado Sarai and plaintiffs' property and there is no other road/ path leading to property of the plaintiff; that they have acquired easementary rights therein for long user, therefore, defendant has no right to erect any wall to block the said passage. In his cross 7 examination, this witness has also admitted that land in respect of which present suit has been filed is a rasta and same has been acquired by the Government.
15. On the other hand, DW-1 Sh Raj Kumar Yadav, Patwari, SEZ, DDA, New Delhi in his affidavit has deposed that plaintiffs have no right, title or interest in the suit land as same has been duly acquired and placed at the disposal of the DDA U/s 22 of the DD Act and land situated in Khasra Nos 224,699/253 and 700/253 of village Lado Sarai is being utitlized for the purpose of planned development of Delhi and plaintiffs have no right to claim a Rasta for their house from the Govt land. It is deposed that plaintiffs had a big house as shown in red in site plan Ex DW1/1 and said house had an opening of about 60' in length on the Rasta abutting on the north of the said house. However, sometime back the plaintiffs and their cousin Sh Suresh Kumar made division of the house between themselves whereby northern side of the house with entire front of 60' on the Rasta was given to Sh Suresh Kumar and southern side of the house was taken by the plaintiffs. It is also deposed that at the time of said division , a passage/ corridor of about 5' from the main Rasta was left by them for the approach of the part of the house taken by the plaintiffs which has now been closed for the purpose of getting another front opening to the house in the south east from the acquired land and to increase the value of their property. He has proved copies of award, possession report and extract notifications as Ex DW1/2, DW1/3 and DW1/4.
16. DW-2 Sh P.T.Varghese, Asstt Engineer in his affidavit has deposed that area through which Rasta is claimed is a part of 8 LIG Housing Scheme for 240 houses on the land which belongs to the Govt and entire scheme would stand spoiled, if any rasta is allowed to be given. It is deposed that plaintiffs had a Rasta on the other side of their house, however, they have closed the same and are now claiming Rasta from the scheme land which is malafide. It is deposed that if alleged rasta is allowed, it would put DDA / Govt to a loss of crores of rupees.
17. It has been argued on behalf of the plaintiff that plaintiff have been using the disputed path for the last about 100 years without any obstruction or objection from owner of the land, therefore, they have acquired easementary rights to pass through the Rasta and use the same. It is also argued that there is no other way except through the way in question that the plaintiffs can have access to their house, therefore, since they have easementary rights vested in them in relation to the disputed way, they are entitled to use the same now. It is also argued that till filing of the suit and till date the plaintiffs have been using the Kacha Rasta and since they have easementary rights in the way, they are entitled to use the same, therefore, they are entitled to the relief of injunction.
18. On the other hand, ld Ld counsel for the defendant has argued that land through which the alleged Rasta exists has been acquired after due proceedings U/s 4,6 & 9 of the Land Acquisition Act. It is also argued that u/s 9 after public notice to take possession, possession of the suit land had been taken including that of alleged Rasta, therefore, in consequence of acquisition of land by the Competent Authority, it has vested in the DDA absolutely without any encumbrance. It is argued that 9 if the plaintiffs had any objection or they wanted to assert easementary rights, it was their duty to file objections against acquisition of the land but once the award had been passed in 1980, the property had vested in DDA without encumbrance. It is argued that word ''vested absolutely without any encumbrance'' in section 16 of the said Act means even if plaintiffs had any easementary rights, after acquisition of the land, they stood extinguished. It is argued that award was passed in the year 1980 and thereafter 30 years have not elapsed from the date of award so that plaintiffs could have acquired fresh easementary rights in the land in question, therefore, plaintiffs do not have easementary rights in the suit property. It is argued that suit is liable to be dismissed.
19. It has been admitted by PW-2 Vijender Kr Sejwal in his cross examination that land shown in red and shown as Rasta in Ex DW1/1 has been acquired by the DDA. However, he has added that Rasta shown in red still exists. He has even admitted that plaintiffs had not filed any objection regarding Rasta land when the land was under acquisition nor had they challenged the award by which said land was acquired by the Government. He has shown his ignorance regarding fact whether any compensation had been paid for the land. Similarly PW-1 Ravinder Kr in his cross examination has admitted that Rasta mark X- to X-1 in Ex PW1/1 is part of the DDA land. Even in pleadings of the parties the fact that the Rasta land has been acquired by the DDA and possession thereof has been taken in the year 1980 has not been disputed. Even in the pleadings it has not been disputed that in May, 2000 DDA had brought building 10 material and started raising a boundary wall around the acquired land. On the other hand, DW-1 has proved the documents Ex DW1/1 to DW1/4. DW1/2 is the award in respect of the acquired land which was passed on 29.7.1980. It was notified vide Ex PW1/4 on 19.7.1980. Even the possession had been taken by the DDA. The short question which arises in this case is whether by acquisition of the land through which alleged passage passes, the easementary rights of the plaintiffs stood extinguished ? It is stated by PW-1 and PW-2 in their evidence that Rasta in dispute was being used from the time of their forefathers and for the last about 100 years.
20. Ld counsel for the plaintiffs have relied upon an authority reported as Suresh Chand vs Hindu Mal & Ors. AIR 1994 HP 56. In this authority, it has been held that if the plaintiff continuously had been using path without any objection for more than 20 years, it raises a presumption that the way was used as of right by way of easementary rights. There is no dispute so far as legal proposition is concerned. However, in the present case, the land acquisition proceedings had been conducted by publication of notice U/s 4 and then U/s 6, inviting objections from the ''interested persons'' against acquisition of specified land required for public purpose. It is admitted case that plaintiffs did not file any objections either against notifications U/s 4 or Section 6 of the said Act. Even the award was passed by the Competent Authority, but that was not challenged by the plaintiffs. Even notice U/s 9 of the Land Acquisition Act was issued regarding taking over of the possession of the acquired land so that claim to compensation 11 qua the land may be decided. Even at this stage, no objections were raised, therefore, the Government took possession of the acquired land in 1980. Section 16 of the Land Acquisition Act is as under:-
'' When the Collector has made an award under section 11, he may take possession of the land which shall thereupon ( vest absolutely in the ( Government), free from all encumbrances.
21. According to this section, after possession had been taken by Competent Authority, land will absolutely vest in the Government from all encumbrances''. What can be the nature of encumbrance on the land acquired ? Section 3 is relevant in this regard. Section 3 insofar as relevant is reproduced as under:-
'' In this Act, unless there is something repugnant in the subject or context ************ ''(b) The expression'' person interested'' includes all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act ; and a person shall be deemed to be interested in land if he is interested in an easement affecting the land''.
22. According to provisions as referred to above, a person having easementary rights affecting the land sought to be acquired is an ''interested person'' under a duty to raise objection at any state of acquisition. Of course from the combined reading of aforesaid two provisions, it is clear that even the person having easementary rights are entitled to file objections U/s 4 & 6 of the said Act and if no such objections have been filed and the award has been passed, on taking over the possession by the Government, the land would vest in the Government absolutely without any encumbrance.
23. The next question arises whether valid acquisition of the land has effect of extinguishing the easementary rights in the 12 acquired land or such easementary rights can still be claimed by those in whom they are vested ? No authority on this point has been cited by ld counsel for the plaintiff. However, in Municipal Corporation of the City of Bombay vs Great Indian Peninsula Ry. Co AIR 1916 PC 3, it has been held that ''encumbrance'' as mentioned in Section 16 of the Land Acquisition Act includes customary right of passage. It was also held that taking possession by the Collector under the provisions of the Land Acquisition Act would extinguish the rights of public to cross the land acquired. According to this authority the acquisition of land and taking of the possession has effect of extinguishing easementary rights, if any vested in the land acquired. There is another case reported as Jivandas Khimje vs Smt Narbada Bai AIR 1959 Calcutta 519 ( DB) which is an authority on the point whether the Collector who made the award is competent to keep the easementary rights alive in derogation of Section 16 of the Land Acquisition Act ? It was held by their lordships that if the collector in his award keeps the easementary rights the directions regarding easement remaining alive it would be ineffective because they are against the express provisions of Section 16 of the Land Acquisition Act. It was further observed that a land Acquisition Collector is assumed to know the provisions of Section 16 and the position of law that after an award has been made and the Collector has taken possession, the land vests absolutely in the Government free from all encumbrances including rights of easement. No such easementary rights have been saved in award Ex DW1/2 in favour of the plaintiffs. Therefore, the land stood vested in the 13 Government free from all encumbrances including the easementary rights of the plaintiff in the year 1980 when the award was passed and possession was taken.
24. Ld counsel for the plaintiffs has argued that no other way through which the plaintiffs cold have access to their house. Though, DDA has placed on record site plan Ex DW1/1 and has set up a defence that the land of the plaintiffs along with adjoining plot was one plot. According to the DDA the adjoining plot has an opening to the way which leads to Janta Flats. According to the defendant, the plaintiffs had access through adjoining land to that way, however, they have closed down that access to project a case that they do not have any other way to have access to their house just to grab the land of the DDA. It is case of the DDA that the plaintiffs and the owner of the adjoining land are related to each other. However, no such case was set up in the pleadings by the DDA. But fact remains that even in the plaint at page 6, the grievance of the plaintiffs was that if the road is blocked with the help of boundary wall by the defendant,''no motorable road'' would be left which could lead to either the plaintiffs' property or the houses situated in village Lado Sarai. Their case was that Lado Sarai village is very old having extremely narrow lanes through which only scooter or motorcycle scarcely pass and in case of emergency or in case of outbreak of fire or some other emergency, no ambulance or other vehicle could have access through the lanes. Therefore, it is argued that if the wall is constructed, such help would be closed to the residents. It was not their case that there does not exist any other way through 14 which one can not have access to the land of the plaintiffs.
25. So far as existence of way is concerned, in his cross examination PW-2 has admitted that Rajpal has a door opening at point F in Ex PW1/1 and the land opposite point D,E and F is vacant at site. If it is so, then the plaintiffs can have access to their house through this way. Even DW-4 has admitted that gate of house of Rampath opens at point E in site plan Ex PW1/1 which opens in the open space situated opposite to this. He has even stated that gate of house of Rajpal opens at point F in Ex PW 1/1. If it is so, then the way to the house of Rampath will surely be closed down but he has not approached this court. This shows that there exists some way through which the plaintiffs can have access to their house and it can not be said that they have access to their house except through this way.
26. The next question which arises in this case is whether plaintiffs have acquired fresh easementary rights ? The award was made in 1980 and in 1980 the easementary rights of the land in question acquired by the Government stood extinguished by virtue of operation of Section 16 of the Land Acquisition Act. The present suit was filed in January, 2004. Apparently plaintiffs have not enjoyed the easementary rights continuing for a period of 30 years after acquisition of land and before that their right to way has been challenged and obstructed, therefore, they have not acquired any fresh easementary rights in respect of suit property. When they have not acquired any fresh easementary rights over the Rasta in question and their old easementary rights stood extinguished by operation of Section 16 of Land Acquisition Act, they are left with no rights of any kind in the 15 land in question. To grant relief of injunction, it is necessary a specific right should be vested in the plaintiffs which others try to encroach upon. Since the plaintiffs are proved to have no right of any kind in the suit land, they are not entitled for any injunction. This issue is accordingly decided.
27. Relief:- In view of my findings on issue No 2, I am of the view that suit of the plaintiff is liable to be dismissed. Accordingly, suit of the plaintiff is dismissed. In view of facts and circumstances of the case, parties are left to bear their own cost. File be consigned to record room.
Announced in the open Court
on 21.2.07 (BABU LAL)
ADDL. DISTRICT JDUGE
DELHI
16