Delhi District Court
Delhi Development Authority vs Sh. Surender Tomar on 23 August, 2014
IN THE COURT OF MS. VINEETA GOYAL, ADDITIONAL DISTRICT JUDGE
01, PATIALA HOUSE COURTS, NEW DELHI DISTRICT, NEW DELHI
MCA no. 27/13
Unique ID no. 02403C0086062013
Appeal presented on : 08.07.2013
Delhi Development Authority
Vikas Sadan, INA
New Delhi
.... Appellant
versus
1. Sh. Surender Tomar
S/o Late Sh. Om Prakash
116/A, Kishangarh, Vasant Kunj,
New Delhi.
2. Public Works Department
Govt. of NCT of Delhi
Through its Secretary
MSO Building, IP Estate,
New Delhi.
.... Respondents
Appearance : Ms. Promila Kapoor, counsel for appellant.
Sh. Rajat, counsel for respondent no. 1.
Sh. Sanjeev Singh, counsel for respondent no. 2.
MCA No. 27/13 & MCA No. 18/13
Page 1 of 33
MCA no. 18/13
Unique ID no. 02403C0057232013
Appeal presented on : 16.05.2013
Public Works Department
Govt. of NCT of Delhi
Through its Principal Secretary,
Delhi Secretariat, I.P. Estate,
New Delhi
.... Appellant
versus
1. Sh. Surender Tomar
S/o Late Sh. Om Prakash
116/A, Kishangarh, Vasant Kunj,
New Delhi.
2. Delhi Development Authority (Proforma Party)
Through its Vice Chairman
Vikas Sadan, INA Market, New Delhi
.... Respondents
Appearance : Sh. Sanjeev Singh, counsel for appellant.
Sh. Rajat, counsel for respondent no. 1.
Ms. Promila Kapoor, counsel for respondent no. 2.
Arguments concluded on : 12.08.2014
Judgment pronounced on : 23.08.2014
J U D G M E N T
MCA No. 27/13 & MCA No. 18/13
Page 2 of 33
1. Before coming to aforesaid appeals, it will be appropriate to refer averments made by respective parties in the suit filed by plaintiff / respondent. Sh. Surinder Tomar Plaintiff/respondent filed a suit for declaration and permanent injunction after arraying Delhi Development Authority as defendant no. 1/appellant in MCA no. 27/2013, Government of NCT as defendant no. 2/ respondent 2, and PWD GNCT Delhi as defendant no. 3/appellant in MCA appeal no. 18/13.
2. Plaintiff / respondent averred that he is bhumidar/owner and in possession of plot no. 41A measuring about 300 sq yards, forming part of khasra no. 2727/1674. The suit property has been in possession of plaintiff/respondent and his father since 198485 and during the course of their possession, water, electricity and telephone connections have been issued to the plaintiff / respondent. The construction of the said plot is much prior to 2002 and no construction has been raised subsequent to 2006. 2.1 It was further averred that property in question is part of abadi land of village Kishangarh which was established sometime in year 1964 and even prior to that there existed on the said land many houses at the time of commencement of Delhi Land Reforms Act, 1964. Presently, the aforesaid colony is fully developed having thousands of residents. The property in MCA No. 27/13 & MCA No. 18/13 Page 3 of 33 question form part of unauthorized colony known as "JNU Road, Village Kishangarh" and the colony has been issued a provisional certificate of recognization bearing no. F.1.ee/UC/UD/2004/PtIII by Government of NCT defendant no. 2 on 17.09.2008. Delhi Development Authority with approval of Central Government and in exercise of powers conferred by Section 57 of Delhi Development Act made the renovations for regularization of unauthorized colonies in Delhi. The Regulation which were notified in the Gazette of India (extraordinary on 25.03.2008) are still in force.
2.2 It is further averred that as per Regulation 7 of the Regulations for Regularization of Unauthorized Colonies in Delhi, defendant no.2/the Government of NCT of Delhi is responsible for coordination and supervision of entire process of regularization of unauthorized colonies in Delhi. PWD GNCT Delhi, defendant no.3/appellant being the agency of Government of NCT has been entrusted with work of carrying out the widening of road no. 16 (eastern side) of JNU, Asif Ali Road. The plaintiff's/respondent's property in question is situated at the fringe of the road and the respondent/defendant DDA is threatening to dispossess the plaintiff / appellant from property in question as it is required for purposes of widening roads. A Public Interest Petition bearing Civil Writ Petition No.4771/1993 titled as Common Cause V. Union of India & Ors was filed before Hon'ble High Court of Delhi in respect of 1071 authorized MCA No. 27/13 & MCA No. 18/13 Page 4 of 33 colonies considered by DDA and the Government of NCT for regularization and framing the policy for the same.
2.3 It was further averred that the Master Plan for Delhi 2001 was extensively modified and notified by Central Government on 07.02.2007 with the perspective for year 2021 and it provided for the regularization of unauthorized village abadi area and its extension. In furtherance to that the regularization were notified by DDA and further National Capital Territory of Delhi Laws (Special Provisions) Act 2007 (43 of 2007) was enacted on 05.12.2007 to make special provisions to areas of NCT for a period upto 31.12.2008 which ceased to operate after that. In continuation to this Act, similar enactments were made in year 2008, 2009 , 2010 and 2011. The provisions of National Capital Territory of Delhi Law (Special Provision Act 2011) no. 5 of 2011 are applicable till 13.12.2011 . The declared purposes of Special Provisions Act is to provide for temporary relief and minimise avoidable hardships and irreparable loss to the people of NCT of Delhi against any action either by concerned agencies in respect of persons covered by the policies of regularization referred in said enactment.
2.4 It was further averred that as per provisions of Regulations and Special Provisions Act, the defendants/appellants are to regularize the colonies which MCA No. 27/13 & MCA No. 18/13 Page 5 of 33 has been built uptill 2007 whether on Government Land or on Private Land the policies as framed by them without any discrimination on the ground of case totality and colony to colony. The defendants/appellants thereafter prepared a list of 1432 colonies for regularization. The plaintiff/respondent colony is at serial no. 54 in the list of 1432 colonies which were notified for regularization and the provisional regularization certificate dated 17.09.2009 issued to the plaintiffs/respondents' colony bears no. F.1ee/UC/UO/2004/ PtIII. 2.5 It was next averred that that father of plaintiff/respondent has filed as suit in year 2003 praying for permanent injunction against defendants/appellants from demolishing the super structure, ceiling or taking possession of property bearing kashra no. 2727/1674 situated in village Kishangarh. The Hon'ble High Court of Delhi was pleased to stay the order refusing interim injunction in favour of the plaintiff therein / respondent and the said injunction was remained in operation till 2010 when the plaintiff withdrew the suit relying upon the affidavit filed by the Vice Chairman of DDA wherein he stated that due to various legal enactments no action could be taken in respect of unauthorized constructions existing as on 01.01.2006 in unauthorized colonies. The said affidavit was filed by Vice Chairman of DDA in contempt case no. 218 of 2007 titled Rambir Singh V. DDA and Anr. As per the super structure in the property was in existence before 2006, the plaintiff withdrew the suit under the impression that the said MCA No. 27/13 & MCA No. 18/13 Page 6 of 33 property will get the benefit of enactments and policies. 2.6 It was next averred that with vide letter dated 25.06.2010 addressed to Vice Chairman DDA the plaintiff/defendant has specifically stated that he will handover the land which comes in the alignment of widening of the road. The officials of DDA visited the site and put marks on the land coming in the alignment of widening of road. The plaintiff/respondent on its own dismantled the super structure constructed on the portion of the land as identified by the officials of DDA and to their satisfaction. The officials having again inspected the property and being duly satisfied that the land identified by them to be falling in the proposed alignment of road has been cleared and assured the plaintiff that no coercive action would be taken against the remaining remaining portion of the property. It was next averred that the officials of DDA has been carrying out demolition activities in the same colony in a adjacent property where the land was falling within the proposed alignment. Even defendant / appellant DDA has been following a consistent policy of leaving out that portion of land which is not falling within the proposed alignment of widening of road. Similar demolition exercise was carried out on 0607.07.20011 wherein some of the properties in the vicinity of property of plaintiff / respondent were partially demolished and the area not falling within the proposed alignment of the road was left out. DDA has no jurisdiction over the said property as the said colony MCA No. 27/13 & MCA No. 18/13 Page 7 of 33 village Kishangarh has been denotified being a development area under Delhi Development Act.
2.7 It was further averred that Hon'ble High Court of Delhi has passed Interim Injunction in favour of similarly situated persons vide its recent order where DDA has partially demolished a structure of plaintiff wherein and was threatening to demolish the remaining structure and was threatening to demolish the remaining portion of property situated in the same colony Village Kishangarh. Even earlier interim protection has been granted to similar situated premises vide order dated 22.07.2010 in Writ petition (Civil) No.4278/2010 titled Sanjay Dhaka & Anr. Vs. DDA.
2.8 It was further averred that the officials of DDA on 22.07.2011 without issuing any notice suddenly came to the property of plaintiff / respondent and illegally demolished the ground floor portion of the structure in the plaintiff / respondents property. The structures demolished by official was an old structure constructed much prior to cut of date stipulated under the Delhi Special Provisions Act 2011 and further the super structure form part of plaintiff's / respondent plot of land which is situated in the unauthorized colony known as JNU Road, Village Kishangarh and this colony has been issued a provisional certificate of regularization by Govt of NCT on 17.09.2008. The MCA No. 27/13 & MCA No. 18/13 Page 8 of 33 officials of DDA however, could no demolish the basement floor and the same still exists on the site.
2.9 It was further averred that Government of NCT on one hand issued provisional certificate and on the other hand officials of the DDA are threating the plaintiff / respondent that they would demolish the basement and would take over the possession of entire property of the plaintiff/respondent. It was next averred by plaintiff/respondent that the purported purpose of such demolition is widening of road namely Aruna Asif Ali Marg, however from the perusal of map the complete property of the plaintiff / respondent is not required for such purpose and apprehending demolition of property the plaintiff / respondent was constrained to file a Writ Petition (Civil) no. 5379 of 2011) before Hon'ble High Court of Delhi on 28.07.2011. The DDA / appellant appeared on an advance notice and did not deny the extract of site plan relied upon by the plaintiff / respondent however, requested some time to verify the plan at page 93 of the paperbook whether it is correct or not. Hon'ble High Court was pleased to issue notice with directions to DDA that the basement of the property of the plaintiff / respondent as shown in orange portion in the site plan be not demolished till further orders. The DDA did not object or deny the map relied upon plaintiff / respondent in affidavit however at later stage on 05.08.2011 it made a oral statement that the portion shown in the orange colour MCA No. 27/13 & MCA No. 18/13 Page 9 of 33 also falls within the area for road widening without substantiating its claim with any proof. However, vide order dt. 16.08.2011 the Hon'ble Single Judge dismissed the writ petition inter alia wrongly held that plaintiff is not entitled to perpetuate the interim relief the effect thereof is to hold up the Public Work of road widening affecting the public at large and also on the premises that the contentions of the plaintiff / respondent that about 5060 sq yards of his property is not falling in the green land is a question of fact which cannot be called into in writ jurisdiction.
2.10 It was further averred that aggrieved by the order dt. 16.06.2011 the plaintiff / respondent filed a Letter Patent Appeal LPA no. 670/2011 challenging the same amongst other grounds that as per the extract of the map / site plan which has been placed on record by the plaintiff / respondents the area for which the plaintiff / respondent is seeking relief does not fall in the area of road widening and therefore is not required either for the road widening. 2.11 It was further averred that the plan of widening of road (proposed alignment of road no. 16) Eastern side of JNU Asif Ali Road was finalized by the officials of DDA sometime in year 1995 and the plan has not been modified or changed till date and actual work of widening of the roads is being carried out as per plan only. Infact DDA has cited this plan in various judicial proceedings MCA No. 27/13 & MCA No. 18/13 Page 10 of 33 and as per the said plan no portion of the plaintiff's/ respondent land is required for the purpose of widening of the road. Only a small area of about 1520 sq yard may be required for the purpose of construction of footpath abutting the road.
2.12 It was further averred that appellant / defendant no. 3 has infact carried out the work of widening of road and in further thereof the work of paving the road and digging up of the drainage pit over which the footpath on the corner of the road is to be constructed has already been finished. The plaintiff / respondent property is not included in the list of the properties falling in the work of widening of the road and this fact is evident of road widening plan filed by Dy. Director of DDA. Defendant /appellant had actually as on date already finished the job of paving the road and digging up the drainage pit to be built beneath the footpath as per site plan. The said area of plaintiff's/respondent's plot over which the drainage pit has been dug up is marked as red in the site plan. The area of plaintiff's plot which is purportedly required for the purpose of development of green belt abutting road is marked in green and the area of plaintiff's/respondent's plot which does not even fall in green belt and is absolutely out of road widening plan is marked in orange. Property marked as green and orange are not actually required by defendants for the purpose of widening the road.
MCA No. 27/13 & MCA No. 18/13 Page 11 of 33 2.13 It was further averred that the LPA no. 670/2011 filed by plaintiff / respondent was disposed off by Hon'ble High Court of Delhi vide its order dt 20.09.2011 whereby Hon'ble High Court of Delhi refused to set aside the order dt. 16.1.2011 passed by Hon'ble Single Judge in writ petition (Civil) no. 5376/2011 gave liberty to the plaintiff / respondent to agitate claim by filing a civil suit. Hence the plaintiff/respondent has filed present suit against defendants for declaration and permanent injunction.
3. The suit was contested by defendants / appellants and separate written statements were filed traversing the averments made in plaint.
4. Delhi Development Authority / defendant no. 1 / appellant in MCA no. 27/13 in its separate written statement inter alia pleaded that the suit of the plaintiff / respondent is barred under order 2 rule 2 of CPC as father of the plaintiff namely Sh. Om Prakash (since deceased) had filed a suit titled Om Prakash Verma V. Union of India & Ors vide suit no. 263 of 2003 on same cause of action and sought some relief in the said case and the Court of Ld ADJ Delhi pleased to dismiss the application u/o 39 rule 1 and 2 of CPC on 12.05.2004. Thereafter the plaintiff/respondent withdraw the said suit and accordingly the same was dismissed as withdrawn without any liberty to file the fresh suit. Thereafter a writ petition vide petition bearing no. WP no. 9131 of MCA No. 27/13 & MCA No. 18/13 Page 12 of 33 2008 titled as Village Kishangarh Welfare Association v. Union of India and Ors as a member of association was filed and Hon'ble High Court of Delhi was pleased to dismiss the said writ petition. Thereafter another petition bearing no. WP (C) no. 5376/2011 was filed and same was dismissed on 16.08.2011 and LPA no. 670/2011 was preferred and the same was disposed off. Now after availing all the aforesaid remedies plaintiff/respondent, filed present suit on the same cause of action and for the same relief. The respondent/plaintiff has no right title and interest in the suit property to file any suit against answering defendant/appellant as the property belongs to DDA. The Land in question falls in village Kishangarh which is placed at disposal of DDA through notification. The plaintiff / respondent is an encroacher and is in illegal possession of the suit property and has no right, title or interest in the suit property. Further as per revenue record the land vested in Gram Sabha and on the promalgation of Delhi Land Reforms Act, 1954, the land in question vested in Gram Sabha. The Municipal Corporation Act was enacted in 1957. By issuance of notification u/s. 507A of The Delhi Municipal Corporation Act, a number of localities which were formally part of rural areas ceased to be regarded as rural areas i.e. the village mentioned in said notification were urbanized.
4.1 It was further pleaded that as per section 3 (3) (b) of the DDA regulations for regularization of unauthorized colonies in Delhi notified on 24.03.2008, the MCA No. 27/13 & MCA No. 18/13 Page 13 of 33 colonies as part thereof which poses hindrance in its infrastructure projects would not be considered for regularization and the land of the plaintiff / respondent is coming it its road widening and hence the same cannot be regularized and plaintiff / respondent is not entitled for any relief and for action. 4.2 It was further pleaded that under sub section 3 of section 150 of Delhi Land Reforms Act, if the whole of notification issued u/s. 507A of the DMC Act, then the Gaon Sabha constituted for that area shall stands dissolved and all the properties of Gaon Sabha, their obligations, liabilities etc vested in Central Government. The effect of notification that the land belongs to Gaon Sabha, in village Kishangarh, in the renew estate of Mehrauli vested in Central Government which was placed at the disposal of DDA as per notification mentioned above. The nazul land in different urbanized villages was placed at the disposal of DDA for the purpose of development and maintenance. The plaintiff / respondent has no right or interest title in the suit property, Further on 20.08.1974, the Central Government issued a Notification under Section 22 (1) of the DDA, the Nazul colonies in the different urbanised villages for development as green land. By the said notification, DDA was further directed not to make or permit to be made any construction on the said land. The area was a part of the development area also. This notification pertaining to 48 different villages including village Kishangarh and said notification is nowhere MCA No. 27/13 & MCA No. 18/13 Page 14 of 33 challenge in any court of law till date.
4.3 It was further pleaded that Hon'ble High Court in Writ Petition no. 3355 of 1993 titled Rajinder Kakkar and Ors vs DDA and Anr 54(1994) DLT 484 observed that whole of village Kishangarh was urbanized and the land vested with the Central Government was placed at the disposal of DDA vide notification dt. 20.08.1947. It was further held that the petitioners are encroachers of public land and hence not entitled to the discretionary relief. The land is vested in Central Government. Hon'ble High Court further observed that in view of said fact petitioner were ranked trespassers or encroachers of public land and had constructed building without obtaining any approval from the Municipal Corporation of Delhi, they are not entitled to any relief against the non compliance of the provision of section 30 of Delhi Development Act. If the petitioners had any legal right title or interest in land in question, on account of non compliance of section 30(1) by the DDA relief may have been granted, but on the facts of the present case when the DDA in discharge of its duty is removing unauthorized construction on Nazul land which has to be developed and maintained by DDA as a green area, the question of Writ Court any relief to petitioner does not arise.
4.4 It was further submitted that as per Zonal Development plan, Master plan MCA No. 27/13 & MCA No. 18/13 Page 15 of 33 and alignment plan, the Right of Way of this stretch Aruna Asif Ali Road, is 45 meters alongwith it in composite plan a stretch of 60 mtrs. width has been shown as green belt and at present, the built up road in front of some of the suit property is of 7 mtrs width only though the land in question was 45 meters as per plan passed by concerned department. It was further submitted that in 2012 meeting was held int he office of Lieutenant Governor for widening of Maheruali - Mahipalpur from Andheria Mod to NH8 and also widening of Aruna Ali Road from Neela Hauz to intersection at Mehrauli Mahipalpur Road and following decisions were taken after deliberation on the meetings which are as follows :
(a) The R/W of MehrauliMahipalpur road is 75 m as per maser/zonal plan. It was informed that the 3 km stretch from Andheria Mod to Aruna Asaf Ali Junction mostly consisted of vacant land and could be taken up for widening and junction improvement immediately, provided DDA land along the road is transferred to PWD, GNCTD, DDA will hand over the land to PWD, including the needed for work junction.
(b) Principal Secretary, PWD suggestion to take up widening of about 1 km of stretch of Aruna Asaf Ali Road from Neela Hauz to MM Road intersection was approved in principle. Since, the alignment of the road has been approved by the technical committee/Authority, lands deptt. was asked to provide the details of land in possession of DDA as well as status of other and under litigation to PWD.
(c) DDA will handover the above lands, wherever already acquired, on priority. The unacquired lands, wherever already MCA No. 27/13 & MCA No. 18/13 Page 16 of 33 acquired under emergency provision immediately to ensure that PWD complete the road improvement works.
4.5 The suit property is required for widening of Asif Ali road and the right of way of Mehrauli - Mahipalpur is 75 meters as per Master/zonal plan. The road plan prepared by DDA shows that the land which is coming up in road widening, it includes the land in question. The plaintiff / respondent is not entitled for relief neither under unauthrorized colony regularized guidelines nor under Delhi Laws (Special Provision) Act 2000.
5. In a separate written statement Public Works Department defendant no. 3/appellant in MCA no. 18/13 submitted that the plaintiff/respondent is an encroacher of the land in question. The answering defendant / appellant is executing a road project and land in question falls within the requirement of project. As per directions of Court a joint survey was conducted by DDA and PWD and same has been filed by DDA. The land for this project is to be provided by DDA free from all encroachments and then PWD being project executing agency of the Delhi Government, carries out the construction as per the approved plan and specific design for the project.
5.1 It was further submitted that PWD is executing a very important infrastructure project of a road connecting Aruna Asif Ali Road to the T MCA No. 27/13 & MCA No. 18/13 Page 17 of 33 junction of Mehrauli Mahipalpur Road including fly over, which is for public good and as part of infrastructure development for improvement and augmentation of public serve of road infrastructure which is going to become a national asset. The land in question is very much a part of project requirement as per DDA project plan. The width of road project does not cover only the metalled portion of road but also consists of footpath, service roads, side lanes and mandatory green buffer zone etc. The right of the way of road should be uniform through out the entire length of laying, if there are encroachment on the same spot, it is a grave traffic hazard because service road for proper merging of traffic cannot be developed there is grave risk of fast moving traffic on the carriage ways colliding. The entry and the exit to the villages on the road side cannot be blocked completely and the villagers alongwith road users have a right of way which could not be compromised by the illegal acts and encroachment made by plaintiff / respondent. In fact the plaintiff/respondent has made illegal constructions and encroached upon public land which need to be removed. On the strength of aforesaid grounds, a prayer was made that the suit filed by plaintiff / respondent be dismissed.
6. During the pendency of suit the application filed by the plaintiff / respondent under Order 39 Rule 1 and 2 of CPC was disposed off by passing the impugned order dated 27.02.2013.
MCA No. 27/13 & MCA No. 18/13 Page 18 of 33
7. The Ld Trial Court after considering rival contention of parties was pleased to order that defendant / appellants are restrained from dispossession the plaintiff / respondent from the suit premises till disposal of the suit. The relevant extracts of findings of Ld Trial Court is reproduced as under :
I have heard the arguments and have perused the record. The suit of the plaintiff is involving the very small question/controversy. During the course of arguments plaintiff has accepted his status of an encroacher and he admitted that he is not having any title document such as Khatauni of the land in question. It is also an admitted fact that his entire portion has already been demolished by the DDA and now there is no superstructure existing over the land in question. Though there is a very small basement there beneath the land in question but the same is also not of any use at present as it is open to sky above its staircase. From the above mentioned statement of plaintiff he himself has surrendered all his rights in the suit property to the extent it is required for the execution of the project of road widening and creation of green belt so now in my opinion nothing remains to be objected by the defendants against the plaintiff. His own undertaking to this effect in itself solved the controversy in question as, it cannot be, that DDA or PWD in its road widening process would widen the road to different levels at different places, the road is to be widen uniformly. It is pertinent to mention here that it is an admitted position that there is no construction at present on the plot of the plaintiff and he has undertake that he will not raise any construction over the suit plot, he has also undertake that he will MCA No. 27/13 & MCA No. 18/13 Page 19 of 33 not create any hindrance in road widening process and to my mind there is no restriction upon the defendants to construct the road over the plot of the plaintiff provided that the road is constructed on either side of the plot of the plaintiff also. Being the public authority the DDA cannot adopt the policy of pick and choose if the road is to be widen it should be widen uniformally and consistently and not in parts. DDA has the liberty to start the process of widening of road in any direction towards the plot of the plaintiff but it should not be the case that only the plot of the plaintiff is constructed and remaining adjoining plots remained as it is and if some space is left after the said process of road widening or creation of green belt in the plot of the plaintiff the same would remain with the plaintiff. It is pertinent to mention here that the project in question is about 27 years old and till date the process has not been completed rather initiated and the official of DDA and PWD and their advocates could not tell any reasonable time which would be required for completion of the said process. Therefore, plaintiff shall remain in possession of the constructive portion of the plot in question till that process is initiated and completed and in case in future that project is dropped by the defendants, plaintiff shall have all the rights to deal with the plot as per law prevailing at the relevant time. Hence, in view of the above mentioned decision, defendants are restrained from dispossession the plaintiff from the suit premises till the disposal of the suit. Hence, application U/o 39 Rule 1 and 2 CPC is allowed on above mentioned terms and undertaking of plaintiff.
8. The respective appellants being aggrieved from aforesaid order of Ld Trial Court preferred two separate appeals. These appeals are heard together MCA No. 27/13 & MCA No. 18/13 Page 20 of 33 for disposal.
9. Ld counsel for defendant no. 1 / appellant DDA argued that the suit filed by the plaintiff / respondent no. 1 was barred under the provisions of order 2 rule 2 of CPC, the suit property belongs to defendant no. 1 / appellant and not to plaintiff / respondent no. 1. The land question fells within Village Kishangarh which was placed at the disposal of defendant no. 1 / appellant DDA through proper and lawful notification. Neither plaintiff / respondent no. 1 nor his alleged predecessors were ever the owner of suit land. In fact, as per revenue record the suit land was vested in Gaon Sabha. The plaintiff / respondent 1 is admittedly an encroacher and is in illegal possession of suit land. He has no rights, title, or interest in the suit land. The Ld Trial Court has failed to appreciate that the Delhi Municipal Corporation Act was enacted in year 1997 and thereafter by virtue of notification u/s 507 A of the Delhi Municipal Corporation Act, the villages mentioned in the notification were urbanized. The village Kishangarh fell within revenue estate of Mehrauli and as per the provision of section 3 of section 150 of Delhi Land Reforms Act, the Gaon Sabha constituted for that area stands dissolved and all the properties of Gaon Sabha would stand vested in Central Government, accordingly the land which belong to Gaon Sabha in the village Kishangarh vested in Central Government was then placed at the disposal of DDA / appellant.
MCA No. 27/13 & MCA No. 18/13 Page 21 of 33
10. It was further argued that the land of plaintiff / respondent no. 1 fell within road widening project, it cannot be regularized, as per zonal development plan / master plan /as well as the alignment plan the right of way of stretch on the Aruna Asif Road, 645 meters and alongwith it a composite plan a stretch of 16 meter width has been shown as main belt. At present the built up road in front of some of the properties is only 7 meters width. The suit land partly falls within the ambit of 45 meters as per the plan cast by Central Government.
11. It was next argued that the plan of widening of road had already been handed over by DDA appellant to the PWD for executing the project and there is no dispute that the suit land is covered under the said plan. The plaintiff / respondent no. 1 is encroacher and trespasser on public land and no balance of convenience lies in favour of plaintiff / respondent no. 1.
12. Ld counsel for defendant no. 3 / appellant PWD argued that the instant suit alongwith injunction application was filed in terms of order dated 20.09.2011 passed by Hon'ble High Court of Delhi in LPA no. 670/2011, granting liberty to plaintiff / respondent no. 1 to file a title suit if advised. The order of Hon'ble High court was very specific and circumscribed the boundaries of the suit that could have been filed and reliefs sought had to be based on the same. MCA No. 27/13 & MCA No. 18/13 Page 22 of 33
13. It was next argued that the plaintiff / respondent no. 1 filed suit claiming to be owner of suit land as bhumidar but this stand was later on given up by the plaintiff /respondent no. 1 and it was admitted before Ld Trial Court of being an encroacher.
14. It was next argued that defendant no. 3 / appellant is executing a very important infrastructure project of road including flyover connecting Aruna Asif Ali road to the T junction of Mehrauli - Mahipalpur road which is for public use and would aid the saving of time and fuel for the commuting public by reducing traffic conjesion etc. The suit land is a part of this project requirement as per the DDA project plan which was observed even while Ld Civil Judge when he visited the site for specimen inspection.
15. It was further argued that a joint survey was conducted and report was filed before ld Trial Court which specifically mentions that the basement of property in question is falling within the right of way of 45 meters as indicated in the pink colour in the plan enclosed with the said report. And the rest of the property was falling within the green belt alongwith Aruna Asif Ali Road as per approved lay out plan of Vasant Kunj Housing Scheme and approved Zonal Development Plan of Zone F. It was further argued that ld Trial Court has exceeded its jurisdiction and injunction granted by ld Trial Court would sabotage MCA No. 27/13 & MCA No. 18/13 Page 23 of 33 the future work of this project. The plaintiff / respondent no. 1 could not be allowed to make a somersault and take new position. It was further argued that section 4 of National Capital Territory of Delhi laws (Special Provisions) Act 2011 does not protect plaintiff / respondent no. 1 as it specifically mentions that no relief is available under section 3 in respect to encroachment and unauthorized development in case of encroachment over public land except in the case which are covered under clauses (a)(b) and (c) of subsection 1 of section 3 of the Act. Section 4(b) of the Act specifically bars relief under provisions of section 3 in respect of encroachment or unauthorized development with respect to removal of slums and jhuggies, unauthorized colonies village abadi area (urban villages and their extensions) in accordance with relevant policies approved by Central Government, for clearance of land required for specific public projects.
16. Repelling aforesaid contentions Ld counsel for plaintiff / respondent no. 1 argued that there is no infirmity in order passed by ld Trial Court. Section 3 of National Capital Territory of Delhi laws (Special Provisions) Act 2011 mandates maintenance of status quo in respect of properties covered under the Act not withstanding any judgment, order or decree of any Court. The plan of widening of road as claimed was finalized by the officials of appellants sometimes in year 1995 which as per Delhi Special Provision Act is under review. On the opposite MCA No. 27/13 & MCA No. 18/13 Page 24 of 33 of property in question the land in possession of DDA, the DDA has illegally constructed the boundary walls on the areas of the land which was to be used for widening of road as per plan. The property in question is not required for widening of road. The Presiding officer of ld. Trial Court has physically inspected the property and the adjoining location and on physical inspection it was found that construction of widening of road was complete alongwith construction of footpath in a uniform, consistent manner. The appellants / defendants cannot be permitted to follow the policy of pick and choose. It was further argued that there is no infirmity in the order of Ld Trial Court as the liberty has been granted to the defendants / appellants to start the construction of the widening of road towards the property in question in uniform and consistent manner. The defendants / appellants have only been restrained from taking the possession of property in question illegally under the garb of widening of road when the road is not under construction.
17. I have heard rival contentions raised by ld counsel for parties and gone through material available on record.
18. Before adverting to the respective arguments of the parties, it is imperative to refer to the order of Hon'ble High Court in WP 5376/2011 in the case of the respondent titled as SURENDER TOMAR versus DELHI MCA No. 27/13 & MCA No. 18/13 Page 25 of 33 DEVELOPMENT AUTHORITY decided on 16.08.2011 as under:
1. .....
2. ..........
3. Further adjournment cannot be granted since the petitioner is enjoying the interim order.
4. The writ petition has been filed to restrain the respondent No.1 DDA from carrying out demolition and / or from taking possession and / or from dispossessing the petitioner from property bearing plot No.41A forming part of Khasra No.2727/1674 in village Kishangarh, New Delhi.
5. The counsel for the petitioner admits that the petitioner has no right or title in the land aforesaid. His only argument however is that the property aforesaid of the petitioner is part of the unauthorized colony of Kishangarh to which a Provisional Regularization Certificate has been issued. The counsel for the petitioner further admits that there have been two prior proceedings, one a writ petition being W.P.(C) No.9131/2008 by an Association of the residents of the said unauthorized colony and of which Association the petitioner is a part and the other a suit being CS(OS) No.162/2003 filed by the father of the petitioner and in both of which petitioner remained unsuccessful in getting the relief.
The counsel for the petitioner further admits that petitioner and his father have given an undertaking not to come in the way of the work of road widening underway.
6. The respondent No.1 DDA in its counter affidavit has stated that the property of the petitioner including the portion, with respect to which interim order was granted on 29th July, 2011 is coming in the way of the work of road widening.
MCA No. 27/13 & MCA No. 18/13 Page 26 of 33
7. The only argument of the counsel for the petitioner is that the property of the petitioner is not coming in the way of road widening. The counsel for the petitioner has handed over in the Court a lay out plan. He states that the same was attempted to be filed in the Registry and remained under objection. He states that the extract of the said lay out plan has been filed at page 93 of the paper book and on the basis whereof the interim relief was granted to the petitioner on 29th July, 2011. He further contends that since the respondent No.1 DDA has not filed any documents whatsoever along with its counter affidavit, the petitioner will now have to collect all the documents and to show that the property of the petitioner is not in the way of the road widening work underway. The counsel for the petitioner further states that out of 300 sq. yds. of the property of the petitioner, about 50 to 60 sq. yds. does not even fall within the green belt.
8. As aforesaid, the petitioner has had enough opportunity to place the documents. It cannot be forgotten that because of the interim order of this Court, the public work of widening of the road is held up. The rights of the petitioner have to be seen in the said context. It is an established principle now that the element of public interest is to be considered while granting any interim relief (see Smt. Ishmali Devi Vs. DDA MANU/DE/1838/2009 where case law in this regard is discussed). The petitioner having no right to the property which is admittedly situated within an unauthorized colony, is not found entitled to perpetuate the interim relief, the effect whereof is to hold up the public work of road widening affecting the public at large. Else, as far as the contention of the petitioner of 50 to 60 sq. yds. portion / area of his property not falling in the green belt is concerned, the same are questions of fact and which cannot be gone into in this writ jurisdiction. There is thus no merit in the MCA No. 27/13 & MCA No. 18/13 Page 27 of 33 petition; the same is dismissed. No order as to costs.
(emphasis supplied)
19. The aforesaid order was challenged before Hon'ble High Court in LPA 670/2011, which was dismissed on 20.09.2011 but in the order the following was also observed:
However, we grant liberty to the petitioner to file a title suit, if so advised, within a period of 10 days before a proper legal forum. Further liberty is granted to file an application under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure which shall be dealt with by the concerned Judge within a period of 10 days therefrom. Status quo, existing as on today, shall be maintained for a period of 20 days.
Needless to emphasize, the reliefs claimed in the suit shall be restricted to the area which has not been agreed/conceded to be given to the DDA for widening of the road. If any observation has been made by the learned Single Judge pertaining to the right, title and interest, it shall not be treated as binding findings by the Court which will be dealing with the litigation. The respondent DDA/Central Government/State Government will be entitled to raise all objections available to them in law.
20. A conjoint reading of the aforesaid two orders of the Hon'ble High Court makes it clear that the issue has been set to the rest in all other aspects but only a limited point which needs to be determination was the right/ title or interest of area of 50 to 60 sq. Ft. of land which has not been conceded/ agreed MCA No. 27/13 & MCA No. 18/13 Page 28 of 33 to be handed over to the DDA/ PWD. It was not open to the plaintiff / respondent to reinitiate the entire issue which has been conclusively decided in the order dated 16.08.2011 and affirmed in order dated 20.09.2011. The Ld. Trial Court has committed an error and transgressed its jurisdiction in giving protection of Order 39 Rule 1 and 2 of CPC over the entire suit property, a subject matter which has finally been decided by Hon'ble High Court vide orders dated 16th August 2011 and dated 20th September 2011.
21. Now coming to the issue of protection of order 39 Rule 1 and 2 of CPC for the area which has not been conceded or agreed to be handed over, the petitioner in the suit has reiterated the argument that the same is protected under the notification issued by Govt. Of NCT. It is to be noted that this argument of the petitioner did not find favour with the Hon'ble Single Judge and thus argument was rejected but in the LPA Hon'ble Judges observed that the petitioner need to present a case on facts as to how the right/ interest and title of the petitioner need to be protected in respect of the area not conceded/ agreed to be handed over.
22. In the present proceedings, the following facts about the suit property has been recorded by Ld Trial Court:
• The plaintiff/ non appellant has no title over the entire suit property and thus encroacher upon the entire land as MCA No. 27/13 & MCA No. 18/13 Page 29 of 33 mentioned at page 12 and 17 of the order of Ld Trial Court; page 12 - During the course of argument, the plaintiff stated that even he is treated like an encroacher over the land, even then his right over the property is protected under the National Capital Territory of Delhi Laws (Special Provisions) Act 2011.
page 17 - During the course of arguments plaintiff has accepted his status of an encroacher and he admitted that he is not having any title document such as Khatauni of the land in question.
• The entire suit property at present has no structure except small basement which is not in use and open to sky above its staircase as is observed at page 17 of the order of Ld Trial Court. This is an observation recorded by Ld Trial Court after carrying a joint inspection.
23. The Ld Trial Court at page 17 of the order first records observations that the plaintiff has given an undertaking of not raising any construction, there is no superstructure and all the rights have been surrendered thus there remains nothing to be objected but at the same time contradictory findings have been recorded that the plaintiff has given a specific undertaking to hand over the area as and when required thus he need not be dispossessed. This argument is untenable under law and would encourage people to grab public land by putting a contention that it would be given back as and when required.
24. Another reason given by Ld Trial Court in allowing the application under MCA No. 27/13 & MCA No. 18/13 Page 30 of 33 Order 39 Rule 1 and 2 of CPC is that the authorities should not pick and choose is equally fallible because once a person has been declared as encroacher he loses right even against discrimination. These kinds of defences are available to a lawful owner of land whose land is being dispossessed by the State using its sovereign authority.
25. Further Ld Trial Court while deciding above application travelled beyond the jurisdiction in advising the defendant authorities that if the road is to be widened it should be widened uniformly and consistently and not in parts. These decisions are to be taken by the defendant / appellant authorities and courts are not competent to guide upon the width of the road. Further, Ld Trial Court has recorded another erroneous observation that the respondent authorities have taken 27 years in initiation of the project and still not in a position to tell any reasonable time thus the rights of an encroacher to be protected. Ld Trial Court further contemplated that in case this project is dropped in future the plaintiff shall have right to deal with the plot as per law prevailing at the relevant time which tantamount to recording a finding on the merits of the case. At the stage of Order 39 Rule 1and 2 ld Trial Court was armed only to decide whether or not any interim protection is to be extended. Any observation on future happening is unwarranted. Another observation that any surplus land that remains after the construction of the road and green belt MCA No. 27/13 & MCA No. 18/13 Page 31 of 33 would vest in the plaintiff is an observation in the nature of deciding the issue on merit.
26. The argument of the plaintiff / respondent that his right over the suit property is protected under the National Capital Territory of Delhi Laws (Special Provisions) Act 2011 is not tenable because the appellant authorities has placed on record sufficient material demonstrating a prima facie case in their favour that the suit property shall be required for the public project. In such situation, the protection of the provisions of National Capital Territory of Delhi Laws (Special Provisions) Act 2011 is unavailable because Section 4 of the Act clearly lays down as under:
4. During the period of Operation of this Act, no relief shall be available under the provisions of Section 3 in respect of the following encroachment development, namely:
(a) encroachment on public land except in those cases which are covered under clauses (a), (b) and (c) of Subsection (1) of Section3;
(b) removal of slums and jhuggiJhompri dwellers, hawkers and urban street vendors, unauthorized colonies or part thereof, village abadi area (including urban village) and its extension in accordance with the relevant policies approved by the Central Government for clearance of land required for specific public projects.
27. The cardinal guiding factor for extending protection of Order 39 Rule 1 MCA No. 27/13 & MCA No. 18/13 Page 32 of 33 and 2 of CPC continue to remain that an irreparable loss would be caused during the period of the suit if such protection is not granted and eventually suit is decided in the favour of the plaintiff. The plaintiff / respondent is admittedly an encroacher and does not have any right in the suit property particularly in view of Section 4 of the Act as discussed above who needs any protection.
28. In consideration of the above, the orders of ld. Trial Court allowing the application under Order 39 Rule 1 &2 of CPC can not be sustained and the order dated 27.02.2013 is set aside. Both the appeal stands allowed. No order as to cost. Trial court record alongwith copy of judgment be sent back. Appeal files be consigned to record room.
Pronounced in the open Court on 23.08.2014. (VINEETA GOYAL) Additional District Judge1 New Delhi District : PHC New Delhi : 23.08.2014 MCA No. 27/13 & MCA No. 18/13 Page 33 of 33 MCA no. 37/13 and MCA no. 18/13 23.08.2014 Present : Counsel for parties.
Vide separate judgment of even date the orders of ld. Trial Court allowing the application under Order 39 Rule 1 &2 of CPC can not be sustained and the order dated 27.02.2013 is set aside. Both the appeal stands allowed. No order as to cost. Trial court record alongwith copy of judgment be sent back. Appeal files be consigned to record room.
(VINEETA GOYAL) Additional District Judge1 New Delhi District : PHC New Delhi : 23.08.2014 MCA No. 27/13 & MCA No. 18/13 Page 34 of 33