Delhi District Court
Ms. Savdesh Luthra vs Union Of India (1994) 5 Supreme Court ... on 5 May, 2009
SUIT NO.570/2007
IN THE COURT OF SH. NARESH KUMAR MALHOTRA,
ADMINISTRATIVE CIVIL JUDGE, KARKARDOOMA, DELHI
SUIT NO. 570/2007
DATE OF INSTITUTION: 23.10.2007
DATE OF RESERVING THE ORDER: 02.05.2009
DATE OF DECISION: 05.05.2009
IN THE MATTER OF:-
MS. SAVDESH LUTHRA
W/O Sh. Surjit Lal Luthra
R/O 128, Dayanand Vihar,
Delhi - 110092.
........ Plaintiff
AND
1. MINISTRY OF URBAN DEVELOPMENT & POVERTY ALLEVIATION
Through its Secretary
Nirman Bhawan,
New Delhi.
2. Govt. of NCT of Delhi
Through its Chief Secretary
Department of Urban Development (Unauthorised colony Cell)
Delhi Secretariat, I.P. Estate,
New Delhi.
3. Delhi Development Authority
Through its Vice-Chairman
Vikas Sadan, INA Colony,
New Delhi.
........ Defendants
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SUIT NO.570/2007
SUIT FOR POSSESSION
JUDGMENT
1. Vide this judgment, I shall decide a preliminary issue "Whether there is no cause of action and the suit is liable to be dismissed as alleged?OPD".
This issue was treated as preliminary issue vide order dated 18.10.08. Arguments on the preliminary issue were addressed by counsels for all the parties.
2. The essential facts for the disposal of preliminary issue as per plaint are that the plaintiff is owner and in possession of property bearing no.2 out of Khasra no.2671/558 and 2672/559, situated in area of village Karkardooma, ilaka Shahdara, Delhi (herein after will be referred as suit property). Plaintiff had been using the suit property for the purpose of shop and earning her livelihood from the said shop. On 02.06.04, the officials of Delhi Development Authority had come to the site and demolished the suit property. Property of plaintiff is situated in village Karkardooma which is in the list of 1432 colonies which have been approved for regularisation by the Cabinet of the Central Government vide its decision dated 08.02.07. 2 SUIT NO.570/2007 The colony of plaintiff is shown at serial number 499 in the list of 1432 colonies in respect of which the decision has been taken by the Central Government and Delhi Government for regularisation. As per plaintiff, Government of India had appointed a committee in the year 1974 to go into the subject of regularisation in unauthorised colonies in Delhi. In terms of guidelines dated 16.02.1977, the unauthorised colonies which had come up in Delhi including villages outside the lal dora and also the unauthorised extension of the approved colonies were to be regularised. It was also notified that both residential and commercial structures were to be regularised. As per plaintiff, the colonies which had been notified for acquisition were also considered for regularisation. In pursuance of said guidelines about 600 colonies had been regularised by the Union of India and Government of India, NCT, Delhi. As per plaintiff, the committee was constituted to suggest guidelines for possible regularisation of unauthorised colonies in Delhi and the committee gave its recommendations and suggested regularisation of colonies and further suggested that cut off date of regularisation be fixed as 31.03.93. As per plaintiff, fresh guidelines were circulated vide letter dated 10.02.04, wherein it was decided that cut off date for regularisation be fixed as 31.03.02 and the structure existed on the private and government land shall be regularised. The buildings, which are being used for commercial 3 SUIT NO.570/2007 purpose up to the extent of 50 square meter, shall also be regularised. The guidelines were circulated to all the departments vide letter dated 10.02.04. The directions to the local authorities were issued for taking immediate preparatory for drawing up the list of unauthorised colonies which had come up on 31.03.02. In pursuance of said directions a public notice was issued in newspaper whereby government of NCT Delhi invited the applications from Residential Welfare Associations and other societies for considering their names for regularisation. Large number of applications were received and later on list of 1432 unauthorised colonies had been prepared. Thereafter, another public notice was issued asking for applications from those colonies which figured in the list of 1071 colonies with a cut off date of 31.03.93 and which could not apply earlier due to some reasons for regularisation. Plaintiff further averred that the village Karkardooma had submitted the plans pursuant to earlier guidelines and village Karkardooma figured in the list of 1071 colonies. The said colony applied on 27.12.04 pursuant to public notice dated October,2004. Plaintiff further averred that officials of defendant no.3 in complete defiance of policy decision dated 10.04.01 and 10.02.04 demolished the shop of plaintiff on 02.06.04 and the said demolition was pursuant to acquisition proceedings in respect of village Karkardooma. As per plaintiff, she surrendered the portion of the property in the year 2003 for the purpose of 4 SUIT NO.570/2007 widening the road. It is also mentioned that plaintiff had filed the proceedings before Hon'ble High Court and the said proceedings were dismissed. It is also mentioned that if no action for demolition had been taken by defendant no.3, the benefit of policy would have made available to the plaintiff. Plaintiff has sent a legal notice to the defendant. By way of present suit, plaintiff prayed that the defendants be directed to restore back the possession of property to her.
3. Defendant no.2 filed written statement taking preliminary objection that the suit is not maintainable. On merits, it is averred that plaintiff has not supplied any document of ownership in respect of suit property. It is also mentioned that the Union Cabinet on 08.02.07 approved a proposal for regularisation of unauthorised colonies in Delhi both on private and public land subject to prior permission of Hon'ble High Court and Hon'ble Supreme Court. The guidelines for regularisation of unauthorised colonies in Delhi have been received from Government of India, Ministry of Urban Development on 05.10.07. Other contentions were denied.
4. Defendant no.1 adopted the written statement filed by defendant no.2.
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5. Defendant no.3 filed written statement and denied that plaintiff is owner and is in possession of suit property. The suit land falls in khasra no. 2671/558 (0-2) and 2672/559 (0-5) of village Karkardooma and as per land revenue register khasra no.2671/558 (0-2) and 2672/559 (0-5) was acquired vide award no. 21DC/EZ/04-05. The possession of the same has been taken over by the answering defendant on 22.09.03 from LAC/L&B and the land is in possession of defendant no.3 which is covered with the boundary wall. It is also stated that plaintiff has no locus standi to file the present suit as plaintiff is neither the owner nor in possession of suit property. Plaintiff wants to encroach upon the government land with ulterior motive. The defendant has every right to stop on going encroachment on government land. It is also mentioned that Hon'ble High Court dismissed the petition of plaintiff and thus plaintiff has no cause of action. Dismissal of suit is prayed by the defendant.
6. Plaintiff filed replication and denied the contentions of written statements of defendants and has reiterated the contents of the plaint.
7. I have heard counsels for the parties and gone through the records.
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My findings on the preliminary issue are as follows:-
8. The present suit is filed by plaintiff for possession on the ground that the defendants no.1&2 has initiated action for regularisation of unauthorised colonies. It is also mentioned that in the list of colonies, the colony of plaintiff is mentioned at serial number 499 in the list of 1432 unauthorised colonies.
Plaintiff has not placed on record any document to show that she is the owner of suit property and he was in possession of the same. Admittedly, the possession of suit property has been taken by defendant no.3 on 22.09.03. It is also mentioned that the list in which the suit property is situated had been acquired vide award no. 21/DC/EZ/04-05 and now the possession is with defendant no.3. I am of the view that the present suit is for possession as the possession has been taken by defendant no.3 on the basis of award, this court cannot go into the validity of the award nor any question in regard to the acquisition of land can be raised in this court. Counsel for defendant no.3 has placed reliance on '2008 AIR (Civil) page 822' wherein it is held that:
"When notification has been issued by the State Government as per Land Acquisition Act any encumbrance created by the owner or any transfer made after the issuance of such notification would be 7 SUIT NO.570/2007 deemed to be void and would not be binding on the government."
It is also held that: "subsequent purchaser cannot challenge the acquisition proceedings as also the validity of the notification or the irregularity in taking possession of the land after declaration under section 6 of the Land Acquisition Act." It is further held that:
"the purchaser would be entitled only to get compensation."
9. Counsel for defendant no.3 has also placed reliance on 'Premji Ratansey Shah vs. Union of India (1994) 5 Supreme Court Cases 547' wherein it is held that:
"injunction is a discretionary relief and injunction may be given to protect the possession of the owner or person in lawful possession and it is not mandatory that for mere asking such a relief should be granted. Injunction is a personal right under section 41 (j) Specific Relief Act and the plaintiff should have personal interest in the matter."
It is also held that: "interest of right not shown to be in existence cannot be protected by injunction."
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10. Thus, in view of the fact that land has been acquired and possession is with Delhi Development Authority, the plaintiff is not entitled to regularisation of the colony in which the suit property is situated. I am also of the view as the plaintiff is not in possession of the suit property, she cannot take the benefit of the scheme of defendants no. 1&2. Present suit is not maintainable as the defendant no.3 has taken the possession of the suit land and the same was notified under the Land Acquisition Act, an award has been passed in this regard. In the plaint, plaintiff has mentioned that she has filed proceedings before Hon'ble High Court and appellate Tribunal, M.C.D., against the demolition, but the said proceedings were dismissed. Plaintiff has not placed on record any orders of previous litigations on the court record. Thus, the present suit for possession is not maintainable as the possession has already been taken by defendant no.3/DDA in June, 2003. It is pertinent to mention here that the village Karkardooma was registered on 22.12.04 but the possession of the suit property had been taken in the year 2003 by DDA. Admittedly, the plaintiff has no title in respect of suit property. He is an unauthorised occupant on the suit property. Plaintiff has filed the present suit for recovery of possession. Even if I treat the present suit under the provisions of Section 6 of Specific Relief Act, even then the present suit is not maintainable for the reasons that if the suit is decreed then it will supercede the notification, 9 SUIT NO.570/2007 award and the taking over the possession of suit property by DDA. The petition of plaintiff against the act of demolition is dismissed by the Hon'ble High Court and this fact is mentioned by the plaintiff in his plaint. Thus, I am of the view that there is no cause of action in filing the present suit. This court is not an appropriate forum to grant the relief claimed by the plaintiff. Thus, the preliminary issue is decided in favour of defendants and against the plaintiff.
ANNOUNCED IN OPEN COURT (NARESH KUMAR MALHOTRA)
ON 05-05-2009 ADMINISTRATIVE CIVIL JUDGE
KKD COURTS, DELHI
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