Delhi District Court
Sh. Rakesh Tyagi vs Delhi Development Authority on 9 December, 2021
IN THE COURT OF SENIOR CIVIL JUDGE CUM RENT
CONTROLLER (WEST), TIS HAZARI COURTS, DELHI
Presided by : Ms. Susheel Bala Dagar
RCA No. 13/2021
CNR Number : DLWT030021972021
Sh. Rakesh Tyagi
S/o Late Sh. Malkhan Singh
R/o WZ112,
Village Budhella, Vikas Puri
New Delhi110018.
................Appellant
Versus
1. Delhi Development Authority
Through its ViceChairman
INA, Vikas Sadan
New Delhi110023.
2. Sh. Ram Avtar Tyagi
S/o Sh. Malkhan Singh
R/o WZ106A (Old 112)
Village Budhella Vikas Puri,
New Delhi110018. ...............Respondents
Date of Institution : 08.09.2021 Date on which judgment was reserved : 09.12.2021 Date of pronouncing judgment : 09.12.2021
Regular Civil Appeal arising out Against the Final Judgment & decree decree dated 26.02.2021 passed by Ld. Commercial Civil Judge (West), Tis Hazari Courts, Delhi in case titled, "Sh. Malkhan Singh, Since deceased, through legal heirs (sons) Sh. Rakesh Tyagi & Anr. v. Delhi Development Authority". ( As per Trial Court record the title of the Suit is " Sh. Malkhan Singh, Since deceased, through legal heirs (sons) Sh. Ram Avtar Tyagi & Anr. v. Delhi Development Authority"
RCA SCJ 13/2021 Rakesh Tyagi v. DDA Page No. 1 of 15 Judgment Brief facts of the case:
1. The appellant/plaintiff no.1 (hereinafter referred to as the appellant alongwith his brother Sh. Rakesh Tyagi i.e. Respondent no.2 herein had filed a Suit for Declaration and Permanent Injunction against the Respondent no.1/DDA. Later on the relief of declaration was withdrawn vide Order dated 23.01.2013 and thereafter the said suit remains as Suit for Permanent Injunction only vide which it is prayed that a decree of Permanent Injunction in favor of the plaintiffs/ appellants and against the Defendant/DDA/ respondent may be passed restraining the Defendant/ DDA, its officials, employees, agents, servants or any person acting for and on behalf of the defendant DDA/ respondent from demolishing or dispossessing the appellants from the suit property or any part thereof by putting any obstruction in the peaceful use and enjoyment of the suit property measuring 9 Biswas of Khasra No.21/11/1 (H.No.112 Old) and New Number WZ106A of Village Budhella, Vikas Puri, New Delhi 110018 shown as red in the site plan annexed with the plaint, without due process of law.
2. The appellants and their Late father Sh. Malkhan Singh were residing in suit property since the year 1955 Khasra No.21/11/1 of Village Budhella, Delhi was measuring 3 Bighas & 3 Biswas and an Award bearing No.2183 was announced (Ex. PW1/2) in respect of the aforesaid Khasra Number alongwith other Khasra Numbers of the Village Budhella, Delhi in the year 1969 under Section 11 of the Land Acquisition Act (hereinafter referred to as the L.A. Act). While taking RCA SCJ 13/2021 Rakesh Tyagi v. DDA Page No. 2 of 15 over the possession of the awarded land, the government through Land Acquisition Collector had taken over the possession of only 2 Bighas & 14 Biswas of the land out of 3 Bighas & 3 Biswas in the said Khasra Number i.e. Khasra No.21/11/1 which was lying vacant and the possession of the remaining land measuring 9 Biswas was not taken by the Land Acquisition Collector (hereinafter referred to as the LAC) as the same was built up and the house of the appellant was existing on the same.
3. A villager, Aseraj Tyagi had encroached some acquired land and thus a Writ petition was filed against Aseraj Tyagi and his sons by Budhella Welfare Association bearing CWP No.5495/1997. Since the property of the appellant & respondent No. 2 was unacquired and is abutting the acquired land, therefore, the DDA while taking action against the said encroacher Aseraj Tyagi, also started threatening the appellant, respondent No.2 and their father late Sh. Malkhan Singh and even illegally and forcibly demolished a small front portion of the property of the appellant & respondent no.2. Accordingly the father of the appellant, late Sh. Malkhan Singh, the appellant and respondent No.2 had also filed a Writ Petition in the Hon'ble High Court of Delhi bearing CWP No.623/1999. The Hon'ble High Court of Delhi clubbed both the writ petitions and had also got the demarcation conducted from the revenue authorities. The first Demarcation is dated 13.08.1999 (Ex. PW1/6) in which it is specifically held that the house of Sh. Malkhan Singh is situated on 9 Biswas of land. On the objection of the DDA, another demarcation was ordered by the Hon'ble High Court of Delhi RCA SCJ 13/2021 Rakesh Tyagi v. DDA Page No. 3 of 15 which is dated 07.07.2000 (Ex.PW4/1). Vide this demarcation report it is again held by the authorities that the house of Sh. Malkhan singh falls in Khara No.21/11/1 & 21/11/1 in 9 Biswas of land and the house of the encroacher Sh. Aseraj Tyagi falls in acquired land in Khasra No.21/11/1 and 22/15/2. It is submitted that Khasra No.21/11/2 of Village Bhudella is unacquired.
4. After the aforesaid demarcations, the Hon'ble High Court of Delhi vide Order dated 01.02.2001 (Ex. PW1/5) disposed of both the said writ petitions with the directions that DDA shall find out the unauthorized construction by taking information from the authorities and till the time the DDA takes a decision in the matter, parties shall maintain status quo. Thereafter to find out the correct position of acquired land the DDA had constituted a committee of its three Revenue Officers i.e. Sh. Rajbir Singh Dahiya (Tehsildar Nazul), Sh. Ram Kishan (Tehsildar East Area) and Sh. Rakesh Chander Saxena (Tehsildar NorthSouth Area). This committee had again demarcated the land. This committee has also specifically established vide its Report dated 27.11.2001 (Ex. PW1/11) that on 9 Biswas of land in Khasra No.21/11/1, the possession of which was not taken over by the government due to bing built up property on which the house of the appellant is situated. Thereafter, DDA sent a letter to the father of the Appellant Sh. Malkhan Singh that as per the demarcation report, the structures bearing municipal no. WZ112 and WZ106A of Village Budhella, New Delhi are not on DDA land. The said letter is Ex. PW2/1 proved by Sh. Rajbir Singh Dahiya, the chairman of the said committee constituted by the DDA which is dated RCA SCJ 13/2021 Rakesh Tyagi v. DDA Page No. 4 of 15 24.04.2002. The DDA without any notice or any enquiry or without any intimation to the appellant, had arbitrarily withdrawn the said letter dated 24.04.2002 after more than three years, which the appellant came to know during the pendency of this suit.
5. The DDA again in the year 2005 started harassing and threatening the appellant therefore, the appellant had filed the present suit in the Court on 02.04.2005. The DDA filed its written statement and had taken three preliminary objections. The first objection was that the appellant had not served any notice before filing the suit. The second objection is that the suit is not properly valued for the sake of Court fee and jurisdiction and the third objection is that the suit land has already been acquired vide Award No.2183 and hence the plaintiff is an encroacher. Grounds of the Appeal:
6. The Ld. Trial Court has wrongly held that the entire Khasra No.21/11/1 measuring 3 Bighas & 3 Biswas of Village Budhella was acquired. The Ld. Trial Court has failed to go through Section 16 of the Land Acquisition Act in which it is mentioned that unless and until the possession of the awarded land is taken by the LAC in pursuance to award made under Section 11 of the L.A. Act, the proceedings for acquisition does not complete and the awarded land does not vest in the government and remains in the ownership of the recorded land owner. It is submitted that the case laws relied upon by the appellant during arguments have not been gone through by the Ld. Trial Court. The details of the Case laws cited by the appellant are :
RCA SCJ 13/2021 Rakesh Tyagi v. DDA Page No. 5 of 15 Special Land Officer, Bombay & Others v. Godrej & Boyced AIR 1987 SC 2421, O.P. Aggarwal & Another v. Sh. Akshay Lal & Ors. MANU/DE/1160/2012, Tilak Raj Aggarwal & Anr. v. DDA & Ors MANU/DE/1336/2009, Rohtas Kumar Gupta v. Govt. of NCT of Delhi DDA & Ors. MANU/DE/2138/2008.
7. The Ld. Trial Court simply on the basis of an award has formed an opinion that the land is an acquired land. The Ld. Trial Court has erred in holding that the appellant never challenged the award No.2183. It is submitted that the question of challenging the award by the appellant does not arise at all as the acquisition proceeding qua this 9 Biswas of land i.e. suit land, is not completed and the land is not at all acquired. The Ld. Trial Court has failed to appreciate that when the possession of the land suit land had not been taken over by the government or transferred to the DDA, how the DDA say that the land has been placed at the disposal of the DDA under Section 22(1) of the D.D. Act and the appellant is trespasser.
8. The Ld. Trial Court has failed to go through the award which is Ex. PW1/2 in which it is clearly mentioned that khasra No.21/11/1 is owned by Sh. Bal Mukand S/o Sh. Baldev who is the predecessorin interest of the appellant. The suit land is not acquired and Sh. Bal Mukand is still the owner of the same and only Sh. Bal Mukand can ask for possession of the same the appellant and not the government or the DDA.
RCA SCJ 13/2021 Rakesh Tyagi v. DDA Page No. 6 of 15
9. The Ld. Trial Court has wrongly held that the appellant should have applied to the government to denotify 9 Biswas of land in Khasra No.21/11/1 i.e. the suit land.
10. The Ld. Trial Court has failed to appreciate the law and the facts that as the how the DDA had arbitrarily without any notice to the appellant had withdrawn the letter Ex. PW1/12.
11. It is submitted that the DDA has illegally and forcibly demolished some portion of the property of the appellant as DDA was not having any right title or interest on the suit land and that is why the suit has been filed. The DDA never dispossessed the plaintiff from the suit property at any time. The Ld. Trial Court has erred in holding that the claim of peaceful and undisputed possession of the suit property by the plaintiff stands dented. The Ld. Trial Court has failed to appreciate the law that after announcement of the award only the government, through the Land Acquisition Collector can take possession of the land. The DDA has got no power under the law to take possession of the suit land. The Ld. Trial Court has erred in holding that there is no inaction on the part of the DDA to take possession of the suit property and there was no inaction on the part of the defendant to demolish the property and take physical possession thereof.
12. The judgment referred by the Ld. Trial Court is not at all applicable on the facts of the present case. The Ld. Trial Court has further erred in holding that the letter ExPW1/12 was withdrawn as per the admitted case of the plaintiff. It is submitted that the Ld. Trial Court has erred in holding that the said letter is in no way assigns the plaintiff RCA SCJ 13/2021 Rakesh Tyagi v. DDA Page No. 7 of 15 the ownership over the suit land. Krishna Ram Mahale, Through LRs v. Shobha Venkat Rao AIR 1989 SC 2097, Rajendra Nath Gupta v. Ravindra Nath Gupta MANU/DE/0001/2011, K. Purushothaman v. Poovalappil Lakshmanan decided by Hon'ble High Court of Kerala in January 2011 and K. Padmavathy v. K. Suresh Kumar decided by Hon'ble High Court of Madras on 19.03.2013.
Reply to the grounds of appeal by respondent no.1.
13. In reply respondent no. 1 has denied the submissions by the appellant. It is submitted that the present appeal has been filed by abusing the process of law. The present appeal is devoid of any merit and not tenable in law. The present appeal is not maintainable as against the true owner. It is submitted that the suit land forms part of Khasra No.21/11/1, measuring 3 Bighas and 3 Biswas of Village Budhella which is government land acquired, vide award No. 2183. It is, however, submitted that possession of land measuring 2 Bigha 14 Biswas was taken over by the respondent/DDA on 24.01.1969 through LAC/L&B. The possession of remaining land measuring 9 Biswas was not handed over to DDA by the LAC due to being built up. Various demolition programs were fixed for removing the unauthorized structures from the government land measuring 9 Biswas by DDA which could not be carried out due to some administrative reasons. After acquisitions of the land, the ownership rights are vested in the government and no other person including appellant has any right, title or interest over the same. DDA has legal right, title and interest in the said suit land as the said land is a government land. The said land has not been covered under the RCA SCJ 13/2021 Rakesh Tyagi v. DDA Page No. 8 of 15 provision of LARR Act, 2013, in the light of the judgment dated 06.03.2020 of Hon'ble Supreme Court in the matter of Indore Development Authority, as the compensation amount was sent to L&B Department, GNCTD through revolving Funds at that time.
14. I have Shri Ravinder Singh, Ld. Counsel for the appellant and Shri K.D. Sharma, Ld. Counsel for respondent no. 1/ DDA and also gone through the Court record. Ld. Counsel for appellant has filed written synopsis of their arguments.
Court findings and observations :
15. In the present case, it is admitted fact that the suit property was notified to be acquired by the government under the Land Acquisition Act. It is also admitted that the possession of two bighas 14 biswas was taken and placed at the disposal of the respondent/ DDA and possession of remaining 9 biswas was not taken due to same being built up area. The plaintiff has claimed that in the proceedings under the Land Acquisition Act, title of the land does not pass on to the State until physical possession of the property sought to be acquired is taken.
16. Ld. Counsel for the appellant has relied upon Section 16 of the Land Acquisition of the Act 1894 which is quoted as under :
"16. Power to take possession - 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."
17. Under the L.A. Act, the ownership of the land transfers on taking possession of the awarded land under Section 16 of the L.A. Act and RCA SCJ 13/2021 Rakesh Tyagi v. DDA Page No. 9 of 15 before that the recorded owner of the land remains the absolute owner of the awarded land. After taking over the possession of the land under Section 16 of the L.A. Act, land vests in the government free from all encumbrances. Mere making of award does not mean that the Govt. became to the owner of the land and land is acquired unless and until the possession for the same is taken over by the government.
18. Hence, it is the case of the appellant that neither the title nor the possession pass to the respondent/DDA till date and it is claimed by the appellant that the respondent has no right, title or interest to interfere in the possession of the appellant in respect of the suit property.
19. On the other hand, it is claim of the respondent /DDA that the physical possession of the land measuring 2 bighas 14 biswas had been handed over to the respondent/ DDA on 24.01.1969 by the LAC/ L&B by virtue of notification under Section 22 of the Delhi Development Act 1957. It is also admitted by the DDA that physical possession of the remaining land measuring 9 biswas has not been handed over to the respondent / DDA due to same being built up area. It is alleged that appellant has illegally and unlawfully encroached the government acquired land measuring 9 biswas. However, the DDA has nowhere disclosed on which date any encroachment was made by the appellant. On the other hand, appellant has stated that the suit property is their ancestral property and the house of the appellant is built on the suit property since the year 1955 and the property is in their possession from the year 1955.
RCA SCJ 13/2021 Rakesh Tyagi v. DDA Page No. 10 of 15
20. In a suit for injunction, ownership is not at all relevant and Court is not required to decide ownership of land. The Court has to see under the law that the plaintiff is in a settled possession of the property. If the plaintiff proves that he is in settled possession of the property continuously and interruptedly, the plaintiff is entitled for permanent injunction.
21. The Ld. Trial Court has erred in not appreciating the facts which are even admitted by the Respondent/DDA in WS and evidence that the appellants are in possession of the property and as per the possession report dated 1969 Ex. PW1/3 which says that possession of 9 Biswas of land i.e suit land was not taken being built up proves that the house of the plaintiff/ appellant is there even before the award and existing on the suit land for the last more than 55 years. The successive demarcation reports also prove that house of the plaintiff is there on the suit land.
22. Thus, the plaintiff has claimed to be in settled possession of the suit property. That being so, the plaintiff cannot be dispossessed without due process of law as held by Hon'ble Supreme Court in the case of Rame Gowda and others v. M. Varadappa Naidu AIR 2004 SC 4609. It was held that a person in settled possession is entitled to permanent injunction restraining even the true owner from disturbing his possession without due process of law. The same view was echoed in the cases of Bhagabat Pradhan v. Laxman Praddhan AIR 2004 NOC 53 (Orissa), M/s S.S. Fasteners v. Satya Paul Verma AIR 2000 P & H 301, Shri Balaji Trading Co. v. Veeraswamy Srinivasan CRP No. 2626 of 1979 dated 7.8.1979 (Andhra), Hem Chand Jain v. Anil Kumar 1992 RLR RCA SCJ 13/2021 Rakesh Tyagi v. DDA Page No. 11 of 15
224. The plaintiff has succeeded in proving that he has a right not to be forcibly dispossessed from the suit property. Moreso, when the property has not been taken possession of by the LAC.
23. The Ld. Trial Court has held that the appellant has not filed any document against the proof of ownership of disputed land. However, the appellant in this case is claiming injunction on the basis of settled possession. Even though there is award no. 2183 regarding Khasra no. 21/11/1, however, it is admitted that the entire khasra was not taken possession of and 9 biswas of land was under the occupation of the appellant.
24. The respondent examined one witness DW1 who has admitted that the physical possession of the 9 biswas of the land in Khasra no. 21/11/1 has not been handed over to the DDA/ respondent. Thus DDA cannot claim any right on the built property as it has never been handed over the possession of said 9 biswas of land by the Land Acquisition Collector. Even in the demarcation proceedings in the writ petition before the Hon'ble High Court and as per the report of the committee constituted as per the order of the Hon'ble High Court, the suit land is not the DDA land.
25. Another contention of the DDA is that the appellant should have approached the government for denotification of the land. However, the above contention is not found tenable as the government itself had left the land and not taken the possession of the same being built up. The acquisition proceedings do not complete qua the suit land, therefore, there was no need to approach the government for denotification of the RCA SCJ 13/2021 Rakesh Tyagi v. DDA Page No. 12 of 15 land as the appellant and respondent no.2 are still residing in the suit property. Further, as per The Right to Fair Compensation & Transparency in Land Acquisition, Rehabilitation & Resettlement Act, 2013 the acquisition proceedings already lapsed. As per Section 24(2) of the said Act "in case of Land Acquisition proceedings initiated under the Land Acquisition Act 1894, where an award under the said Section 11 has been made five years or more prior to the commencement of the said Act but the physical possession of the land had not been taken or the compensation has not been paid, the said proceedings shall be deemed to have lapsed and the appropriate government, if it is so chooses, shall initiate the proceedings of such land acquisition as afresh in accordance with the provisions of this Act.
26. The DDA has placed reliance upon Indore Development Authority v. Manhor Lal SLP (C) No. 90369038of 2016 decided on 06th March 2020 to submit that Hon'ble Supreme Court of India has observed that "7. The mode of taking possession under the Act of 1894 and as contemplated under Section 24(2) is by drawing of inquest report/ memorandum. Once award has been passed on taking possession under Section 16 of the Act of 1894, the land vests in State there is no divesting provided under Section 24(2) of the Act of 2013, as once possession has been taken there is no lapse under Section 24(2)."
27. However, the facts of this case are different from above mentioned case as in the present case, the possession has never been taken over by LAC under Section 16 of the Land Acquisition of the Act which is also admitted by the DDA. Further the DDA even though says that the RCA SCJ 13/2021 Rakesh Tyagi v. DDA Page No. 13 of 15 property is government land but has nowhere stated that the same was handed over to the DDA by the LAC.
28. Perusal of the judgment of Ld. Trial Court shows that the Ld. Trial Court has erred in holding that there is no inaction on the part of the DDA to take possession of the suit property. Some demolition proceedings were carried out by government officials but same was challenged in the writ petition on which the report has been filed that the said 9 biswas of land was never taken over. The DDA was neither handed over nor became owner of the suit property as said property was never taken possession of by the LAC. The DDA cannot be stated to be the owner of the suit property.
29. It is settled principle of law that injunction cannot be passed against the true owner. However, the DDA has failed to prove that the respondent/DDA is the true owner of the property. A person in a settled possession can seek injunction and the appellant is seeking injunction by claiming the appellant is in settled possession. Accordingly, the order of the Ld. Trial Court is set aside. Appeal of the appellant is allowed qua the suit property i.e. appellant is granted the relief of permanent injunction qua the suit property i.e., property measuring 9 Biswas of Khasra No.21/11/1 (H.No.112 Old) and New Number WZ106A of Village Budhella, Vikas Puri, New Delhi110018 shown as red in the site plan annexed with the plaint, without due process of law. In view of the facts and circumstances, no order as to costs. Decree sheet be prepared accordingly. Copy of this order be sent to the Ld. Trial Court for RCA SCJ 13/2021 Rakesh Tyagi v. DDA Page No. 14 of 15 information. Trial Court record be sent back. File be consigned to record room.
Announced in open Court (Susheel Bala Dagar)
on 09th Day of December 2021 SCJ cum RC(West)
Tis Hazari Courts, Delhi.
(This judgment contains 15 pages.)
RCA SCJ 13/2021 Rakesh Tyagi v. DDA Page No. 15 of 15