Delhi District Court
Shri Satya Pal vs Delhi Development Authority on 2 February, 2007
IN THE COURT OF SH. MUKESH KUMAR, CIVIL JUDGE,
KARKARDOOMA COURTS, DELHI
In re: Suit No:700/06
Date of Decision: 02/02/2007
Date of Institution: 06/07/2004
In the matter of:
Shri Satya Pal
S/O Late Sh. Attar Singh
R/O E-111/3, Sri Ram Colony,
Khajuri Khas, Delhi
.....Plaintiff
Versus
1. Delhi Development Authority
Through its Vice-Chairman
Vikas Sadan, I.N.A,
New Delhi.
2. Deputy Director
Land & Management (W)
East Zone-III,
Laxmi Nagar Pushta
Delhi-110092.
.......Defendants
SUIT FOR PERMANENT INJUNCTION
JUDGMENT
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1. This is a suit for permanent injunction filed by the plaintiff against the defendants. The brief facts which are necessary for the disposal of present suit are that:
Plaintiff stated himself as the owner of the property forming part of Khasra no. 46 situated in village Khajuri Khas, illaka, Shahdar, Delhi (herein after referred as suit property) measuring 100 square yards having purchased it from its previous owner against the consideration on execution of required documents i.e. Agreement to sale, GPA, will etc. Plaintiff came into possession of the suit property in the year 1987 and is in continuous possession without any interference from the defendants. He has been using the same as a residence and the defendants are not in possession since the last 35 years. It is stated that DD cannot dispossess him without giving any notice U/S 30 of Delhi Development Act and the officials of defendants are threatening to dispossess him alone and no other occupants of the different plots are being dispossessed and the defendants are not interfering with the possession of other occupants except the plaintiff. It is further stated that it is the policy of defendant that the house in unauthorized colony cannot be removed whereever the land was thickly populated and the construction over those lands are 80% covered with the unauthorized 2 construction of the other houses. Even as per the policy of defendants it has been decided that if the land has been acquired but the possession is with the tresspasser/ occupant and the area is 80% covered with the structures then the said land cannot be developed and the same has to be regualrised and even the necessary civic amenities have also been provided like water, electricity, road, sanitation etc. it is further stated that as per the policy of Government formed from time to time regarding the regularization of unauthorized colonies and the recommendations for the regularization of unauthorized colonies is still under consideration before the appropriate authority of the Central Government of India and as per the recommendations of Sriniwasan Committee constituted to prepare the framework for the regularization of unauthorized colonies. Since the matter for regularization of unauthorized colonies is still under consideration before the competent authorities in such circumstances defendant cannot dispossess the plaintiff by adopting the pick and choose policy. As the plaintiff is having apprehension of demolition of his super-structure and dispossession at the hands of defendant, by finding no alternate, plaintiff filed the present suit against the defendants.
3. Defendants contested the suit by filing the written statement. 3
In their written statement, defendants have taken some preliminary objections and have stated that the suit of plaintiff is barred by the provisions of section 53-B of DD Act. It is further stated that plaintiff has not come before the court and suppressed the material facts. It is further stated that plaintiff is the encroacher who has encroached the land of DDA. It is stated that plaintiff has no right, title and interest over the suit property as the same belongs to suit property which is placed at the disposal of DDA for the development purpose. It is stated that as per the plaintiff, he has purchased the suit property in 1987 whereas the suit property including the entire khajoori khas has been acquired by the Central Government vide award no. 113/86-87 and the possession was taken over on 23/09/1986 and the land was placed with the DDA U/S 22(i) of DD Act for development purpose on 15/10/1986 vide notification no. F-9/(4) 86 L&B. It is further stated that the section 3 of Delhi Land (Restriction on Transfer) Act, 1972 has provided that:-
"No person shall purport transfer by sale, mortgage, gift, lease or otherwise any land or part thereof situated in the Union Territory of Delhi which has been acquired by the Central Government under the Land Acquisition Act, 1984 or under any other law providing land of a public purpose."
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It is stated that even if it is assumed that the plaintiff has purchased the suit property in the year 1987 then the entire sale transaction is illegal and void ab-initio lacking sanctity of law and the same is in violation of section 3 of the Delhi Lands (Restriction on Transfer) Act, 1972. It is further stated that plaintiff is under the garb of suit for injunction is seeking the relief of declaration for getting himself declared owner of the property, therefore, the plaintiff has not properly valued the suit for court fee and jurisdiction.
In reply on merits, it is stated that the suit land falls in khasra no. 16 min.(2-14) and not in khasra no. 46 (0-11). Moreover, both the aforesaid khasras had already been acquired by the Central Government vide award no. 113/86-87 and the possession of the same was taken over on 23/09/1986 by the LAC and the same has been placed at the disposal of DDA for further development. Rest of the averments and allegations are denied being wrong and incorrect by the defendant and prayed for dismissal of present suit.
4. Replication to the w/s of defendants filed by the plaintiff and reaffirmed the averments of plaint being true and correct.
5. On the basis of pleadings , following issues were framed on 29/04/2005, which are as under :-
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i) Whether the suit is not maintainable for want of statutory notice U/S 53-B of DD Act? OPD
ii) Whether the plaintiff is entitled for decree of permanent injunction as prayed for ? OPP
iii) Relief.
6. In support of his case plaintiff examined himself as PW1, and Sh. Jaswant Singh as PW5, they filed their evidence by way of affidavit which are Ex.PW1/A and Ex.PW5/A and bears their signatures at point A & B. Plaintiff placed on record certain documents i.e. GPA which is Ex.PW1/1, agreement deed is Ex.PW1/2, copy of receipt is Ex.PW1/3, ration card is Ex.PW1/6, death certificate of Smt. Barti Devi is Ex.PW1/5, site plan is Mark A, Election card is Ex.PW1/8, voter list is Ex.PW1/7. Plaintiff also examined Sh.Sanjay Kumar-LDC from sub- Registrar office, Seelampur as PW2, Sh. Sahadev-Record Clerk from Seelampur as PW3, Sh. Naveen-LDC from Election Commissioner's office as PW4.
On the other hand, defendants examined Sh. Shiv Kr., Patwari as DW1. In rebuttal, defendant placed on record the copy of Award no.113/86-87, copy of kabja karyawai is Ex.DW1/B, Aksijra is Ex.DW1/C. 6
7. I have heard the arguments of ld. Counsel for the parties and have carefully perused the record . My findings on the issues are as under:-
ISSUE NO.1 The onus to prove this issue lies on defendant. This is a suit for injunction and declaration and as per provisions of Section 53-B, no prior notice is required to be served in a suit for injunction. Accordingly, notice was not required. No specific evidence has been led by the defendant. Accordingly, this issue is decided in favour of plaintiff and against the defendant.
ISSUE NO. 2
The onus to prove this issue lies on plaintiff. Plaintiff deposed all on the same line. He filed certain documents in support of his case i.e. copy of GPA, agreement to sell, receipt, ration card, election card and voter list, death certificate and unregistered documents of sale deed. Plaintiff has also placed on record the copy of letter dated 05/02/2004 written to the Deputy Director, DDA for removal of fencing wire.
On the other hand, defendant placed on record the copy of award no. 113/86-87. Counsel for plaintiff stated that plaintiff is residing with his family members in the suit property and he is having apprehension of 7 his dispossession at the hands of the defendant and being a bonafide purchaser, the possession of the plaintiff may be protected. It is further stated that defendant has no right to act in an arbitrary and illegal manner and they cannot demolish or dispossess him from the suit property without serving any notice on the him as per the provisions of DDA Act, 1987. It is further stated that even the matter of regularization of 1071 colonies is still under consideration before the competent authority of the Central Government of India. In case if the defendant will succeed in their evil design, it will cause great injustice to the plaintiff. On the other hand, counsel for defendant has stated that plainti has no right, title or interest over the suit land as the same had already been acquired and even if it is assumed that the plaintiff is residing in the suit property after having purchased the same from the previous onwer, even the entire sale transaction of the plaintiff is void and ab- initio as the suit land is acquired land and the same falls under the khasrta no.16. Counsel for defendant further stated that even the land of khasra no. 46 and khasra no. 16 had already been acquired and the same is at the disposal of DDA for further development purpose. As it is well settled by the Hon'ble Apex Court in Balmukund Khatri Educational & Industrial Trust, Amritsar vs. State of Punjab & Ors 1996 (4) SCC 212, 8 wherein Hon'ble Apex Court had held that the retention of possession after acquisition would tentamount only to illegal and unlawful possession.
As it is clear from the documents placed on record i.e. General Power of attorney, agreement to sell, receipt, although the documents are registered one but the same has been executed in the year when the land was acquired and there was a restriction of transfer of land as provided U/S 3 of the Delhi Land (Restrictions on Transfer) Act, 1972. Moreover, Hon'ble High Court in case titled as 128 (2006) DLT 407 (DB) 'M.L. Aggarwal vs. Oriental Bank of Commerce & Ors.' held that (Registration Act 1908) : "Sale of immovable property can only be by registered deed - immovable property cannot be purchased by mere power of attorney or agreement to sell."
As it has been held by the Hon'ble High Court that GPA does not confer any right over the holder in respect of immovable property. Accordingly, in my considered opinion, plaintiff is not entitled to any injunction. Hence, the present issue is decided in favour of defendant and against the plaintiff.
9 RELIEF In view of my findings on the aforesaid issues, suit of plaintiff is dismissed. No order as to cost. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in the open court (MUKESH KUMAR)
on 02.02.2007 Civil Judge
KKD/Delhi
(One C.C. Attached)
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