Delhi High Court
Delhi Development Authority vs Engineering & Industrial Corporation ... on 30 November, 2018
Equivalent citations: AIRONLINE 2018 DEL 2195
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 30th November, 2018 + RSA 153/2015 & CMs No.7545/2015 (u/O XLI R-27 CPC) & 24525/2017 (u/S 151 CPC) DELHI DEVELOPMENT AUTHORITY ..... Appellant Through: Mr. Rajiv Bansal, Sr. Adv. with Mr. Shlok Chandra, Mr. Ritesh Kumar Sharma, Kamna Singh and Ms. Khushboo, Advs. Versus ENGINEERING & INDUSTRIAL CORPORATION PVT LTD ..... Respondent Through: Mr. Davinder Varma, Adv. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. On 9th July, 2018, after hearing the counsels, the following order was passed:- "1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree [dated 26th July, 2008 in RCA No.39/2006 of the Court of Additional District Judge (ADJ), Delhi] of dismissal of First Appeal under Section 96 of the CPC preferred by the appellant Delhi Development Authority (DDA) against the judgment and decree [dated 27th May, 2006 in Suit No.624/2006 of the Court of the Civil Judge, Delhi] in a suit filed by the respondent/plaintiff against the appellant DDA. 2. The appeal was preferred only in the year 2015 i.e. after nearly seven years of the judgment appealed against and was accompanied with an application for condonation of RSA No.153/2015 Page 1 of 18 delay. Vide judgment dated 31st January, 2017, subject to the appellant DDA paying costs of Rs.5 lakhs to the respondent/plaintiff, the delay was condoned. On the respondent/plaintiff refusing to take costs, the costs was ordered to be deposited with the Prime Minister‟s Relief Fund and further ordered to be recovered from the salary of the officials found guilty for causing such delay. The respondent/plaintiff preferred SLP(C) No.9543/2017 to the Supreme Court and vide order dated 3rd April, 2017 wherein the costs aforesaid was ordered to be paid to the respondent/plaintiff and is informed to have been so paid. 3. The senior counsel for the appellant DDA, on enquiry, as to whether the costs have been recovered from the salary of the officials whose action led to the delay states that an enquiry was initiated and „probably‟ has been completed but he is not aware of the finding thereof. 4. The senior counsel for the appellant DDA, on enquiry, as to the question of law arising for adjudication in this Second Appeal states that the dispute subject matter of the lis is demarcation of land. It is contended that the land subject matter of the suit is situated in Village Naraina; while according to the appellant DDA, the same is situated in Khasra No.1652 of Village Naraina, according to the respondent/plaintiff, it is situated in Khasra Nos.1649, 1650 and 1651; that the two Khasras abut each other; while Khasra No.1652 was acquired under the Land Acquisition Act, 1894, Khasra No.1649, 1650 and 1651 form part of the colony of Inderpuri developed on the land in Village Naraina. However, while this order is being dictated, the senior counsel for the appellant DDA states that the two sets of Khasras do not abut each other but have a strip of land between them. The senior counsel for the appellant DDA, on enquiry, whether the strip of land between the two sets of RSA No.153/2015 Page 2 of 18 Khasras was also acquired, states he has no instructions in this regard but there is a school on the said strip of land. 5. The senior counsel for the appellant DDA had contended that the Courts below have relied upon the report of demarcation got done of the land and on the basis whereof have held the suit land to be falling in Khasra No.1649, 1650 and 1651 which was not acquired. It is contended that under Section 28 of the Delhi Land Revenue Act, 1958, the task of demarcation has to be done only by the Deputy Commissioner and the Courts below erred in having got the demarcation done from the Local Commissioner appointed in the suit. 6. It is argued that the said substantial question of law arises for consideration in the present Second Appeal. 7. Being in the know that the properties in the colony of Inderpuri stated to have been developed on parts of land in Village Naraina have been levied property tax for a considerable length of time, I have enquired from the senior counsel for the appellant DDA, whether the land in Village Naraina, whether it be in Khasra No.1652 stated to have been acquired or in Khasra No.1649, 1650 and 1651 which was admittedly not acquired, has been urbanised under Section 507 of the Municipal Corporation of Delhi Act, 1957 and whether the provisions of the Delhi Land Revenue Act would continue to apply to the land post urbanisation also, for Section 28 thereof to be invoked by the appellant DDA. 8. The senior counsel for the appellant DDA states that there is nothing on record on this aspect and as far as the legal question is concerned, he has not looked into the same. 9. The counsel for the respondent/plaintiff has however in this contest (sic context) drawn attention to Section 1(2) of the Delhi Land Revenue Act which provides that "it extends RSA No.153/2015 Page 3 of 18 to the whole of the Union Territory of Delhi, except any area specified in sub-section (2) of Section 1 of the Delhi Land Reforms Act, 1954". He has then invited attention to Section 1 of the Delhi Land Reforms Act, 1954 which provides for the said Act to extend to the whole of the Union Territory of Delhi but not to "the areas which are or may before the 1st day of November, 1956 be included in a municipality or a notified area under the provisions of the Punjab Municipality Act, 1911 or a Cantonment under the provisions of the Cantonments Act, 1924" or "areas held and occupied for public purpose or a work of public utility and declared as such by the Chief Commissioner or acquired under the Land Acquisition Act, 1894 or any other enactment other than this Act relating to acquisition of land for a public purpose". 10. The counsel for the respondent/plaintiff though states that the area has already been urbanised by Notification under Section 507 of the Delhi Municipal Corporation Act after November, 1956, but the said Notification is not on record. He however states that since according to the appellant DDA, the land was acquired under the Land Acquisition Act, 1894, the Land Reforms Act and the Land Revenue Act, would not apply thereto. 11. Even otherwise, I am of the view that since it is the appellant DDA who is raising a substantial question of law on the plea of Section 28 of the Land Revenue Act, it was incumbent upon the appellant DDA, for invoking the said plea, lay the necessary foundation by way of pleadings and evidence therefor and having not done so cannot be permitted to raise a question of law which does not arise from the pleadings and evidence. RSA No.153/2015 Page 4 of 18 12. In fact, the counsel for the respondent/plaintiff in his arguments has urged another fundamental objection to entertaining this appeal. He has informed that the respondent/plaintiff, besides the suit from which this appeal arises, had also filed another suit and which was tried by the same Court in which the subject suit was being tried and common evidence was led in both the suits. It is informed (i) that the respondent/plaintiff is the developer of the colony of Inderpuri; (ii) that the respondent/plaintiff, while carving out plots for sale in the said colony, carved out plots No.ED- 7 to 10 and ED-11 to 15; (iii) that the appellant DDA however claimed that the said plots were part of acquired land in Khasra No.1652; (iv) that the respondent/plaintiff simultaneously filed two suits i.e. the subject suit with respect to plots No.ED-7 to 10 and the other suit being Suit No.625/2006 with respect to plots No.ED-11 to 15; (v) that the learned Civil Judge decided both the suits together, though by separate but identical judgments and both the suits were decided in favour of the respondent/plaintiff; (vi) that the appellant DDA preferred two appeals i.e. against the judgment in each of the suits and which appeals being RCAs No.38/2006 & 39/2006 were also dismissed by identical but separate judgments; (vii) that the appellant DDA has however preferred this appeal against one of the judgments only and not with respect to the judgment in the other appeal which has attained finality; (viii) that since the case of the respondent/plaintiff in both the suits was the same and the judgments in the two suits and in the appeals preferred thereagainst are also the same, the appellant DDA having allowed the judgment in the other suit to attain finality, is not entitled to pursue this appeal. 13. A perusal of the paper book of the present appeal shows the title of the appeal to be against the judgment and RSA No.153/2015 Page 5 of 18 order dated 26th July, 2008 in RCA No.38/2006. In the Index to the appeal also, the appeal is described as against the judgment in RCA No.38/2006. However, the judgment which the appellant DDA filed along with the memorandum of appeal at page 24 is the judgment in RCA No.39/2006. A perusal of the judgment in RCA No.39/2006 shows the same to be against the judgment and decree dated 27 th May, 2006 in Suit No.624/2006. However, while filing the judgment in the suit at page 70 of the paper book, the judgment filed is in Suit No.625/2006, though subsequently the appellant DDA under Index dated 28th October, 2015 has filed the copy of the judgment in Suit No.624/2006. 14. From the aforesaid, it is clear that it is not as if the appellant DDA, while filing the appeal or thereafter was not aware that there were two suits and two appeals against the judgments therein. The appellant DDA however till date is not informed to have preferred any appeal against the judgment and decree of dismissal of first appeal arising from the other suit. It is not the case that the said first appeal was allowed. 15. The senior counsel for the appellant DDA, on specific enquiry, whether common evidence was led and whether there was any difference between the two suits and the judgments therein, states that they were substantially the same, save for the difference in plots number. 16. It is further informed that the report of the demarcation got done by the Suit Court was the same in both the suits. 17. The senior counsel for the appellant DDA however states that the Advocate for the appellant DDA engaged in this Court did not receive instructions for preferring appeal against the other judgment. RSA No.153/2015 Page 6 of 18 18. The aforesaid fortifies that the appellant DDA was throughout aware of the plurality of suits and First Appellate Court judgments but chose to prefer an appeal against one and not against the other. It is also apparent that when the appellant DDA again became aware during the pendency of this appeal, on it being pointed out by the counsel for the respondent/plaintiff that the copy of the wrong Trial Court judgment has been filed still did not choose to prefer appeal against the other. 19. The appellant DDA has thereby run the risk of having this appeal also dismissed only for the reason of having allowed the judgment in the other suit in favour of the respondent/plaintiff to have attained finality. If save for the difference in plot number, all the other facts were the same, evidence was the same and arguments are the same and which is not disputed, the appellant DDA having allowed the findings against it in one to have attained finality, cannot be heard to urge this Court to, on the same pleas and evidence, render a contrary finding in the present proceedings. If both sets of plots are situated in unacquired Khasra, this Court cannot allow the appellant DDA to take one set of plots, while having accepted the finding with respect to other set of plots. The same would lead to conflicting decisions of the Court and on which ground judgments/orders which have been allowed to attain finality against some of the persons are not permitted to be agitated against others also similarly situated as the persons against whom the judgment has been allowed to attain finality. The appeal is thus liable to be dismissed on this ground alone. 20. The counsel for the respondent/plaintiff has also argued that the suits filed by the respondent/plaintiff were only for permanent injunction to restrain the appellant DDA from, without due process of law, taking possession of the RSA No.153/2015 Page 7 of 18 aforesaid two sets of plots in the colony of Inderpuri and which the appellant DDA was alleging to be part of the acquired land. He has further contended that the appellant DDA in its written statement admitted the possession on the aforesaid plots to be of the respondent/plaintiff. Attention in this regard is drawn to the written statement at pages 57 and 60 of the paper book where the appellant DDA pleaded the acquired land to have been encroached upon by the respondent/plaintiff. It is yet further argued that the Suit Court also, by its decree merely injuncted the appellant DDA from taking possession of the subject land from the respondent/plaintiff, save by due process of law. It is yet further contended that the appellant DDA inspite thereof has till date not initiated any legal process for recovering possession of the land, if claimed by it to be acquired land, from the respondent/plaintiff. 21. In view of the aforesaid submission of the counsel for the respondent/plaintiff, I have proposed to the senior counsel for the appellant DDA that though the appellant DDA has been found to be highly negligent and rather favouring the respondent/plaintiff, but still, since public land is involved, if the appellant DDA is agreeable, the appeal can be disposed of granting liberty to the appellant DDA to invoke due process of law for recovering possession of the land. 22. The counsel for the appellant DDA seeks time to obtain instructions. 23. Making it clear that no further adjournment shall be granted and if no instructions are received, this Court shall proceed with the judgment, list on 11th July, 2018." 2. The counsel for the appellant / defendant Delhi Development Authority (DDA), on 11th July, 2018 stated that he has instructions to RSA No.153/2015 Page 8 of 18 proceed with the appeal and the appellant/defendant DDA is not agreeable to disposal of this appeal with liberty to the appellant/defendant DDA to invoke due process of law for recovering possession of the land. 3. The counsels were heard further on 11th July, 2018 and the file sent to the Chamber to, after perusing the Trial Court record requisitioned, dictate the judgment on the same date. However the judgment remained to be dictated and is now being pronounced today, after the Court Master has in the evening before telephonically intimated the counsels of the same. 4. The respondent/plaintiff instituted the suit, from which this Second Appeal arises, for permanent injunction to restrain the appellant/defendant DDA from, without following due process of law, interfering in the possession of the plaintiff or taking possession of Plots no.ED-7 to ED-10 forming part of Inderpuri colony developed out of Khasra No.1649, 1650 and 1651 of Village Naraina, Delhi, pleading (i) that the respondent/plaintiff, in the business of colonisation, in or about 1951, purchased various tracts of land in village Naraina, Delhi, to develop Inderpuri Colony; (ii) the layout plan of the proposed colony was sanctioned by the erstwhile Delhi Improvement Trust and subsequently by the Town Planner of the Municipal Corporation of Delhi (MCD); (iii) that the plans of the proposed colony were also approved by the Delhi Development Provisional Authority vide Resolution No.265 of 9th October, 1957; (iv) that the Plots No. ED-11 to ED- 15 and C-10, 12, 15 to 21, 34, 37A, 39, 39A, 36, 54 and 35 form part of the colony as shown in the sanctioned plan of the MCD and are comprised out of Khasras No.1649, 1650 and 1651 of Village Naraina; (v) that the staff of the appellant/defendant DDA came to the site to take possession of the said RSA No.153/2015 Page 9 of 18 plots, to develop the said plots into a green belt; and, (vi) that the said plots being part of the layout plan of a sanctioned colony, could not be so taken away. 5. The appellant/defendant DDA contested the suit by filing a written statement pleading that the plaintiff is not the owner of the plots in dispute which fell in Khasra No.1652 of Village Naraina, which is Government land illegally encroached upon by the plaintiff. As far as the detailed averments in the plaint with respect to the plots in dispute being shown in the layout plan of the proposed colony sanctioned by the various authorities, the appellant/defendant DDA generally denied the same and put the respondent/plaintiff to proof thereof. 6. On the pleadings aforesaid, the following issues were framed in the suit:- "1. Whether the suit is bad for want of notice u/s 53-B of the Delhi Development Act? OPD 2. Whether the plots bearing no.ED-11 to ED-15 and C-10, 12, 15 to 21, 34, 37A, 39, 39A, 36, 54 and 35 form part of Khasra No.1649, 1650 and 1651 of village Naraina? OPP 3. Whether the plots bearing no.ED-11 to ED-15 and C-10, 12, 15 to 21, 34, 37A, 39, 39A, 36, 54 and 35 fall in Khasra No.1652 of village Naraina, New Delhi which is a govt. land? OPD 4. Whether the plaintiff is entitled to any relief of permanent injunction, as prayed for? OPP 5. Relief." 7. The Suit Court, on the basis of evidence led, found/observed/held:- RSA No.153/2015 Page 10 of 18 (i) that during the pendency of the suit, Tehsildar was appointed as Local Commissioner to demarcate the land in the presence of the officials of the appellant/defendant DDA and to submit the report showing, whether the land fell in Khasra No.1649 and 1650 as claimed by the respondent/plaintiff or in Khasra No.1652 as claimed by the appellant/defendant DDA; (ii) the Tehsildar was examined as PW2 and deposed that the demarcation was done in the presence of the official of the appellant/defendant DDA and after serving the requisite notice and proved his demarcation report Ex.PW2/3; (iii) the appellant/defendant DDA proved demarcation report Ex.DW1/5 and examined its officials who carried out the demarcation as DW2 and DW3; (iv) the controversy to be decided thus was, which of the demarcation reports i.e. Ex.PW2/3 done by the Tehsildar appointed as Local Commissioner by the Court or Ex.DW1/5 of demarcation carried out by the appellant/defendant DDA, was incorrect; (v) though demarcation report Ex.DW1/5 was also prepared in pursuance to direction to the appellant/defendant DDA in the suit to carry out demarcation, but admittedly no notice of such demarcation was served upon the respondent/plaintiff; (vi) DW1 examined by the appellant/defendant DDA, in his cross examination admitted:- RSA No.153/2015 Page 11 of 18 (a) that he had personally not carried out the demarcation; (b) demarcation was carried out by the staff of Land Acquisition Collector with the help of a machine hired from a private company and the said company has not given any report except the plan of the disputed area; (c) that the points from where the demarcation started were not permanent marks and the marks, with reference to which the demarcation reported in Ex.DW1/5 was carried out, were not mentioned in the regular records; (d) that while carrying out demarcation, the original revenue record was not summoned; (e) that no shajra was seen or used before demarcation; and, (f) though it was deposed that demarcation was started from the road but the Khasra number of the road was not disclosed; (vi) DW2 also in cross examination admitted:- (A) that the demarcation was done without the field book; and, (B) that the masavi of the village was not used in demarcation; (vii) DW3 also in cross examination admitted:- (I) that the halka patwari was not called at the time of demarcation; RSA No.153/2015 Page 12 of 18 (II) that Khasra No.1652 was not mentioned in the photocopy brought of the revenue record from Land & Building Department (L&DO); and, (III) though demarcation was claimed to have been carried out from a Well but no revenue record was produced showing the existence of any Well in Khasra No.1458 from where DW3 claimed to have started the demarcation; (viii) the comparison of the two demarcation reports showed that there was contradiction in the claim of appellant/defendant DDA; (ix) DW3 was involved in the demarcation reported in Ex.PW2/3; (x) that the evidence of DW1, DW2 and DW3 was not reliable and thus demarcation report Ex.DW1/5 was not reliable; (xi) on the contrary, PW2 had proved:- (a) that demarcation reported in Ex.PW2/3 was carried out in the presence of official of appellant/defendant DDA; (b) that the demarcation report was prepared on the site; and, (c) that the demarcation was carried out using fixed points mentioned in the revenue record and on the basis of field books and site plan certified by the Revenue Department and Aks Shijra; (d) the disputed land fall in Khasra No.1649, 1650 and 1651 and not in Khasra No.1652; RSA No.153/2015 Page 13 of 18 (xii) PW2 was a Revenue Officer and an independent witness and demarcation report Ex.PW2/3 with supporting documents inspired confidence and the appellant/defendant DDA had not been able to show any lacuna in the said demarcation report; (xiv) the demarcation report Ex.PW2/3 also clearly mentioned that the persons present were satisfied with the demarcation carried out; (xv) that no objections were filed by the appellant/defendant DDA to the demarcation report Ex.PW2/3 prepared by the Tehsildar as Local Commissioner appointed by the Court; (xvi) the testimony of PW2 was cogent; and, (xvii) it was not in dispute that the respondent/plaintiff was in possession of the plots in dispute. 8. Accordingly, it was held that the plots in dispute fell in Khasra No.1649, 1650 and 1651 as claimed by the respondent/plaintiff and not in Khasra No.1652 as claimed by the appellant/defendant DDA. 9. Accordingly, a decree was passed in favour of the respondent/plaintiff and against the appellant/defendant DDA, of permanent injunction restraining the appellant/defendant DDA from dispossessing the respondent/plaintiff from the plots subject matter of the suit, except by due process of law. RSA No.153/2015 Page 14 of 18 10. The First Appellate Court dismissed the appeal of the appellant/defendant DDA, re-appreciating the evidence and agreeing with the conclusions reached by the Suit Court. 11. The senior counsel for the appellant/defendant DDA also today, instead of addressing on the error if any committed by the Suit Court and the First Appellate Court in relying on the demarcation report Ex.PW2/3 and rejecting the demarcation report Ex.DW1/5, has referred to Anathula Sudhakar vs P. Buchi Reddy (2008) 4 SCC 594 and has argued that in a suit for injunction simplicitor, as the suit from which the subject appeal arises, the findings of title could not have been given. 12. I may add that Supreme Court since, in Jharkhand State Housing Board Vs. Didar Singh 2018 SCC OnLine SC 2170 pronounced on 9th October, 2018, was concerned with the question "whether the suit for permanent injunction is maintainable when the defendant disputes the title of the plaintiff?". It has been held that though it is well settled that in each and every case where the defendant disputes the title of the plaintiff, it is not necessary that in all those cases plaintiff has to seek the relief of declaration, but a suit for mere injunction does not lie when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff; then necessarily in those circumstances, the plaintiff cannot maintain a suit for bare injunction. 13. The respondent/plaintiff in the present case, before instituting the suit, was aware of the claim of the appellant/defendant DDA of the land of the plots in dispute being part of the green belt. Notwithstanding the same, the respondent/plaintiff instituted the suit for a bare injunction restraining the RSA No.153/2015 Page 15 of 18 appellant/defendant DDA from dispossessing the respondent/plaintiff from the said plots, save by due process of law. The suit for a bare injunction was thus not maintainable and liable to be rejected at the threshold. 14. However, the fact remains that the suit was not so rejected and remained pending from 14th October, 1983 till now in appeal. The fact also remains that during the pendency of the suit, an investigation into the controversy was made by appointment of Local Commissioner to determine whether the plots in dispute were situated in Khasra No. 1649 and 1650 as claimed by the respondent/plaintiff or in Khasra No.1652 as claimed by the appellant/defendant DDA and an unequivocal finding returned, of the same being situated in Khasra No. 1649, 1650 and 1651 as claimed by the respondent/plaintiff. 15. I have thus wondered, whether to frame a substantial question of law in this Second Appeal, on the lines of Anathula Sudhakar and Jharkhand State Housing Board Vs. Didar Singh supra and to then allow this Second Appeal and on consideration, decide against the same. The reason is that it is also the settled position in law as enunciated in Lallu Yashwant Singh Vs. Rao Jagdish Singh AIR 1968 SC 620 Krishna Ram Mahale Vs. Shobha Venkat Rao (1989) 4 SCC 131, State of U.P. Vs. Maharaja Dharamander Prasad Singh (1989) 2 SCC 505 and ICICI Bank Ltd Vs. Prakash Kaur (2007) 2 SCC 711, Audio Voice India Pvt. Ltd. Vs. Vivek Khanna 2018 SCC OnLine Del 8643, Rattan Lal Vs. Municipal Corporation of Delhi (2002) 100 DLT 213, Delhi Development Authority Vs. Hakam Singh 2011 SCC OnLine Del 1590 and Midnapur Zamindary Company Ltd. Vs. Naresh Narayan Roy AIR 1924 PC 144 that a person in settled possession cannot be RSA No.153/2015 Page 16 of 18 dispossessed, including by Governmental Authorities, save by due process of law, whatever it may be, even if by mere issuance of a notice under a statutory power if any or by initiation of proceedings under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (PP Act) or by filing a civil suit. 16. The respondent/plaintiff as aforesaid, has been in settled possession, not only since before institution of the suit but now for the last 35 years since when the proceedings are pending. 17. My opinion thus remains the same as was proposed to the counsel for the appellant/defendant DDA in the order dated 9 th July, 2018 i.e. to dispose of this appeal, granting liberty to the appellant/defendant DDA to invoke due process of law for recovering possession of the land and by further clarifying that in the said proceedings if any taken by the appellant/defendant DDA, the findings if any of the Suit Court and the First Appellate Court with respect to the Khasra number in which the plots in dispute are situated, shall not be binding and the said question, if arises, would be open for fresh determination in accordance with whatsoever procedure may be deemed appropriate. 18. The appeal is accordingly disposed of leaving the parties to bear their own costs. 19. It is hoped that the appellant/defendant DDA will at least now act promptly and invoke appropriate proceedings available to it in law for recovering possession of the land, if still claimed by the appellant/defendant DDA to be situated in acquired land in Khasra No.1652 of Village Naraina. RSA No.153/2015 Page 17 of 18 20. I further hope that DDA, in future, will not waste time in contesting such suits for permanent injunction against dispossession, where the plaintiff is in settled possession and will immediately have such suits disposed of, making statement that it will take recourse to the process of law and initiate proceedings in accordance therewith. I may remind DDA that even if the appeal were to be allowed, DDA would still have to take recourse to the process open to it for recovering possession of its land. RAJIV SAHAI ENDLAW, J.
NOVEMBER 30, 2018 „pp‟..
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