Delhi District Court
Sh. Kamla Yadav vs Union Of India on 11 April, 2012
IN THE COURT OF AJAY GOEL: SCJ CUM RC(CENTRAL): DELHI.
S-1513/06/92
In the Matter of:
1.Sh. Kamla Yadav,
D/o Late Sh. Jahari Sigh,
2.Sh. Ravinder Singh,
S/o Late Sh. Jahari Singh,
through their duly constituted attorney,
Sh. Prem Chand, S/o Late Sh. Banarsi Dass,
R/o XII/10445, Bagichi Peerji,
Subzi Mandi, Delhi-7. ........Plaintiffs.
VERSUS
Union of India, through
1.The Secretary to the Govt. of India,
Ministry of Defence, New Delhi.
2.The Chief of Army Staff,
Army Head quarters, New Delhi.
3.Officer commanding,
Field Battery Ceremonial
C/o 56, A.P.O.
4.Major S.P. Sharma, (Then Captain)
225, Medium Regiment, C/o 56 A.P.O.
5.Defence Estate Officer, Delhi Circle,
Delhi Cantt.-110010.
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6.The Secretary to the Govt. of India,
Ministry of Home Affairs, Deptt. of Internal Security,
Rehabilitation Divn.
Jasalmer House, New Delhi. ........Defendants.
Date of Institution: 19.10.1992
Date of Assignment to this court: 09.03.2009
Date of Arguments: 07.04.2012
Date of Order: 11.04.2012
JUDGMENT
1. This is a suit for mandatory injunction filed by plaintiff against the defendants. It was stated that plaintiff is in occupation of a portion of property corresponding to plot Survey No. 13 known as Abdullah Dairy, Delhi Cantt. It was stated that said property is an evacuee property under the control of Rehabilitation Division, Department of Internal Security, Ministry of Home Affairs, Jaisalmer House, New Delhi as the tenancy/lease hold rights stood vested in the custodian of evacuee property under the provision of Administration of Evacuee property and subsequently acquired under the provision of D.P. Act and the rules framed thereunder bringing the said property unto compensation pool. It was stated it appeared that there is correspondence between defendant No. 5 and 6 seeking retrieval of the property from the defendant No. 6 which is not possible until the property in question is de-vested by the due process of law under the administration of Evacuee Property Act. It was stated that from S-1513/06/92 Page No. 2/9 the tax assessment register and the notice issued by the Delhi Cantonment Board it is evident that the property in question belongs to the defendant No. 6 till date and the Delhi Cantonment Board is recovering the rent from the occupants adjustable towards house tax due from the defendant No. 6. It was stated that plaintiff's deceased father was the receipt holder tenant/occupant and had been paying damages to the defendant No. 6 and he died on 07.9.1990 leaving behind the plaintiffs as his legal heirs. As stated plaintiffs deceased father alongwith other occupants had moved for the transfer of the property in accordance with the provision of D.P. (C&R) Act. It was stated that portion being claimed by them for its transfer along with other occupants forms an integral part of plot Survey No. 13 Abdullah Dairy, Delhi Cantt. and the identity of this property is clear and is well demarcated. It was stated that plaintiffs deceased father had received a letter from defendant No. 5 along with other occupants so mentioned in the letter dated 17.9.87 asking for the proof from the occupants including the plaintiffs deceased father for their paying rent for use and occupation and further calling upon them to produce the copy of latest receipt and plaintiffs deceased father replied to defendant No. 5 enclosing there with a copy of the latest receipt stating inter-alia that he was an occupant and his name appears in the record of both the defendants No. 5 to 6. As stated a notice purported to have been sent by the defendant No. 4 regarding the encroachment on defence land and it S-1513/06/92 Page No. 3/9 was stipulated in the said notice that the unauthorised construction be vacated by 24th of January 1989 and said notice evidently had been pasted on the conspicuous part of the property, however said notice was replied by the plaintiffs deceased father in the form of detailed representation to the defendant No. 4. As stated plaintiffs deceased father denied the alleged encroachment upon any property situated in Brar Square rather as stated above the plaintiffs deceased father was in occupation of plot Survey No.13 known as Abdullah Dairy, Delhi Cantt. and further stated that same is an evacuee property which falls outside the jurisdiction of the defendant No. 4. It was further stated that defendant No. 4 instead of discharging the notice, illegally demolished the structure of plaintiffs deceased father on the plot Survey No. 13. It was stated that action taken by defendant No.4 was illegal and without jurisdiction. Hence the present suit was filed by plaintiff thereby praying to pass a decree of mandatory injunction in favour plaintiff for restitution of portion in the property existing prior to the dismantlement of the structure, against defendants No. 1 to 5. It was further prayed that pending restitution of the portion of the said property existing prior to the dismantlement, the defendants No. 1 to 5 may be directed to allow temporary shelter in the said plot, which shall be a stop gap arrangement and shall be demolished on the passing of decree for mandatory injunction seeking restitution.
2. During proceedings, none appeared on behalf of defendants No. 1, S-1513/06/92 Page No. 4/9 2, 5 and 6 despite service, hence they were proceeded ex-parte vide order dated 16.2.1993 but later on they joined the proceedings and argued the matter.
3. In reply to plaint, written statement was filed by defendants wherein preliminary objections were raised stating that present suit of the plaintiff is not maintainable as premises in question belongs to Union of India which is a public premises. It was stated that plaintiff has no locus standi to file the present suit, hence suit deserves dismissal. It was also stated that suit is without cause of action and the plaint does not disclose any cause of action. On merits, it was stated that land in question belongs to Govt. of India, Ministry of Defence and the plaintiff is in unauthorised and illegal possession of the said land in question. It was submitted that land in question was leased out to Mrs. Abdullah in Schedule VI of CLA Rules 1925 for a period of 30 years upto 30th September 1957 and said premises for the purposes of enjoyment of lease rights came within the purview of Rehabilitation Act 1954 upto 30th September 1957 only i.e. upto the date of expiry of lease period only and thus on expiry of the lease period, the said property vest free from all encumbrances with Ministry of Defence since the lease was not renewed after 30th September 1957 and no request was made by the Rehabilitation Department for its further renewal. It was also stated that receipts produced by the plaintiff's deceased father do not prove the occupation as there was no allotment made to them.
S-1513/06/92 Page No. 5/94. Rejoinder was filed by the plaintiff in which contents of the plaint were reiterated and those of WS were denied.
5. Vide order dated 01.08.2001, on the pleadings of parties, the following issues were framed:-
1) Whether the suit is barred U/s 10 and 15 of the Public Premises eviction of unauthorised occupant Act?
2) Whether the plaintiff has any locus standi to file the present suit?
3) Whether notice U/s 80 CPC was valid and proper?OPP
4) Whether the plaintiff is entitled to the decree of mandatory injunction as prayed for?OPP
5) Relief.
6. In evidence, the plaintiff examined four witnesses in support of his case i.e. PW-1 Sh. Vijay Parkash, PW-2 Sh. Dheeraj Singh Chauhan, PW-3 Sh. Prem Chand Verma and PW-4 Sh. Lajpat Rai.
7. In defence, defendant examined DW-1, Captain Raviji Raina, Major, Ministry of Defence to prove his case.
8. I have gone through the record and have heard the counsels for both parties. My issue-wise finding is given below:-
9. Issue No. 1. Whether the suit is barred U/s 10 and 15 of the Public Premises eviction of unauthorised occupant Act?:- The possession has already been taken and relief of injunction has been sought which cannot be given by any other court. The rights of parties were required to be adjudicated and there is no bar U/s 10 and 15 of the Public Premises Eviction of Unauthorised Occupant Act.
S-1513/06/92 Page No. 6/9There is no other alternative forum for redressal of grievances. Hence, issue No. 1 is decided in favour of plaintiffs and against the defendants.
10.Issue No. 2. Whether the plaintiff has any locus standi to file the present suit? and Issue No. 4. Whether the plaintiff is entitled to the decree of mandatory injunction as prayed for?OPP:- Both issues are taken up together as they are inter- connected. The main reliance has been placed by plaintiff on Ex. PW-3/2 arguing that suit property vested in custodian. The whole of the oral as well documentary evidence shows that original person who was given tenancy right had left the country and shifted to Pakistan. Only tenancy right vested with custodian and ownership right still remain with Govt. of India, Ministry of Defence. The letter alongwith other correspondence in this respect is also very much clear. Even witnesses produced by plaintiff has stated that lease was never extended after expiry of lease dated 30.9.57. In para 2 of the WS it was mentioned that lease was never renewed after 30.9.57 and there is no denial of the same in the replication. The tenant has already left and right of ownership remains protected. The plaintiff has only mentioned that he has been occupant but how he is occupying the land is not made out. The courts are not meant for protecting the illegal occupants or tress-passer. The plaintiff was duty bound to prove his invasion of legal rights. Even there is no vesting of lease hold rights in them what to talk of ownership right.
S-1513/06/92 Page No. 7/9The receipt Ex. PW-1/1 and PW-1/2 are only payment of damages charges which cannot be termed as creating of lease hold rights. Strange enough, the Administration of Evacuee Property Act was for the help of displaced persons and even if the custodian has taken over the lease hold right it could have been given to some person who had come from Pakistan and not to persons who were resident of India and they cannot take benefit of usurping the possession illegally during the unrest created by division of country. The property should have been declared Evacuee Property first which in the given circumstances could not have been declared. The land could never have been allotted to them even by legal way because they were not displaced person. Furthermore, the custodian could take away only those property which was possessed by persons who left for Pakistan. Here the owner was still in India which is none-else than Ministry of Defence and it was not unclaimed land which can be given to anybody by custodian without asking the defendant i.e. Ministry of Defence. It is not clear as to in what circumstances and how and under which order the lease hold rights vested in custodian because when tenant surrendered tenancy right by vacating the land then no rights were left with him which could have been taken over by custodian. No independent right has been shown by plaintiff showing the entitlement of their possession. Thus it becomes immaterial as to how and under what circumstances, the property was possessed by defendant. Thus all issues are decided in favour of S-1513/06/92 Page No. 8/9 defendant and against the plaintiff and it is held that Rehabilitation authority has no jurisdiction to issue receipt in respect of this property and plaintiff was encroacher /tress-passer and lease hold rights cannot be vested with custodian and plaintiff is not entitled for the relief.
Issue No. 3. Whether notice U/s 80 CPC was valid and .11 proper?OPP:- The onus of proving this issue was on the plaintiff. Under this issue it was to be proved as to whether notice U/s 80 CPC was valid and proper. Notice U/s 80 CPC is available on record Ex. PW-3/6 and receipts of service are Ex. PW-3/7. Thus it is clear that valid and proper notice U/s 80 CPC has been served upon the defendants. Accordingly, this issue is decided in favour of plaintiff .and against the defendants
12.Relief:- In view of the finding on issues No. 2 and 4, the suit of the plaintiff stands dismissed. Decree sheet be prepared. File be consigned to record room.
Announced in open court on (AJAY GOEL)
11.04.2012. SCJ cum RC(Central)/Delhi.
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