Delhi District Court
Ram Bhagwan Singh Chauhan Anr vs South Delhi Municipal Corporation on 26 September, 2024
IN THE COURT OF MS. RUBY NEERAJ KUMAR, SENIOR CIVIL
JUDGE-CUM-RENT CONTROLLER, SOUTH DISTRICT, SAKET
COURTS, NEW DELHI.
CS SCJ No. 83753/16
CNR No: : DLST03-000325-2013
1. Ram Bhawan Singh Chauhan
S/o Late Sh. Kishan Singh
R/o Amar Kishan House, S-1351,
Chandiwala Bagh, Nizamuddin East,
New Delhi-110013.
2. Lata Devi
W/o Late Sh. Raj Bhawan Singh Chauhan,
R/o Amar Kishan House, S-1351,
Chandiwala Bagh, Nizamuddin East,
New Delhi-110013.
.......Plaintiffs.
Versus
1. South Delhi Municipal Corporation
Building Department-1, Central Zone,
Lajpat Nagar, New Delhi.
Having Heard Quarters At:
Dr. S.P.M. Civic Centre, Minto Road,
New Delhi-110002.
2. Land and Development Officer,
Ministry of Urban Development,
CS SCJ No. 83753/16 Ram Bhawan Singh Chauhan vs. SDMC & Ors. 1 of 25
Gate No.4, 'A' Wing, 6th Floor,
Maulana Azad Road, Nirman Bhawan,
New Delhi-110011.
3. Archaeological Survey of India,
3rd Floor, Puratatva Bhavan, Block-D,
General Pool Office Complex,
INA, New Delhi-110023.
....... Defendants.
Date of institution of suit :04.01.2013
Date of arguments :13.09.2024
Date of pronouncement of judgment :26.09.2024
Order
1. By way of this order, I shall dispose of the application under Order
XII Rule 6 CPC, filed by the plaintiffs.
2. Facts of the case in nutshell as enunciated in the plaint are that
since the year 1950, the plaintiffs are in settled possession of the House
bearing No. S-1351, Amar Kishan House, Plot No.16-A, Chandiwala
Bagh, Mathura Road, New Delhi (hereinafter referred to as 'suit
property'). It is the case of the plaintiffs that the entire land, on which the
suit property is situated, is known as Bagh Chandiwala and it originally
belongs to one Seth Mukhram Chandiwala. It is stated to be situated
CS SCJ No. 83753/16 Ram Bhawan Singh Chauhan vs. SDMC & Ors. 2 of 25
between Mathura Road & Arab Ki Sarai, Nizamuddin, Delhi. It is averred
that father of plaintiff no.1 namely Late Sh. Krishan Singh was employed
by Seth Mukhram as Security Guard and the suit property was allotted to
Late Sh. Krishan Singh by Seth Mukhram, in return of the services
rendered by him as security guard. Plaintiff no.2 is the wife of brother of
plaintiff no.1.
3. It is submitted that on 03.10.2012, defendant no.1 issued a vacation
notice under Section 349 of the Delhi Municipal Corporation Act, 1957
to the plaintiffs, asking them to vacate the suit property within 24 years.
In the said notice, it was alleged that the plot no.16-A, Chandiwala Bagh
has been encroached upon by M/s. Goel Auto Technology, M/s. I.S. Goel
& Co., Bus Parking, Sports Jacket and Gloves, Baker Smith, Mohan Bros
Bus Co., in contravention of Section 346 of Delhi Municipal Corporation
Act.
4. It is averred that the defendants had further carried out partial
demolition of the said plot of land on 08.10.2012 and also sealed the
entry to some of the constructions located on the said premises. The
illegal acts of the defendants constrained the individual owner of the
premises situated at plot no.16-A, Bagh Chandiwala to invoke writ
jurisdiction of the Hon'ble Delhi High Court by filing writ petition
bearing W.P(C) No.6509/2012 titled as Mukesh Mohan Goel & Ors. vs.
CS SCJ No. 83753/16 Ram Bhawan Singh Chauhan vs. SDMC & Ors. 3 of 25
Assistant Engineer (Building) & Ors. The Hon'ble High Court of Delhi,
vide its judgment dated 15.10.2012, passed in the said writ petition, set
aside the vacation notice dated 03.10.2012.
5. It is further the case of the plaintiffs that despite the said judgment
dated 15.10.2012, the officials of the defendants again came to the suit
property on 29.11.2012 at around 10:00 AM and threatened the plaintiffs
to vacate the same within 10 days stating that they have decided to
demolish it. Being aggrieved by the said acts of the defendants, plaintiffs
filed a writ petition bearing W.P(C) No. 7559/2012 titled as Ram
Bhawan Singh Chauhan & Anr. vs. L & DO & Ors. The Hon'ble High
Court of Delhi dismissed the said writ petition as withdrawn vide order
dated 19.12.2012, while granting interim protection to the plaintiffs till
07.01.2013 with liberty to the plaintiffs to approach this court by way of
present suit.
6. It is further the case of the plaintiffs that vide common order dated
22.02.1979, passed by Sh. O.P. Singla, the-then Ld. ADJ in two appeals
bearing PPA No. 54/78 & 55/78, filed by I.S. Goel & Co. and R.K.
Mehra, under the provisions of Public Premises Act, 1971 against the
order dated 08.08.1978 of the Estate Officer, L & DO, Nirman Bhawan,
New Delhi, in respect of piece of land situated at Chandiwala Bagh,
within which the suit property is situated, it was held that the land in
CS SCJ No. 83753/16 Ram Bhawan Singh Chauhan vs. SDMC & Ors. 4 of 25
question i.e. Bagh Chandiwala is a private land owned by Seth Mukhram
and it is not a government land.
7. The said common order dated 22.02.1979 was challenged by the
Union of India before the Hon'ble High Court of Delhi vide writ petitions
bearing No. 2616/1986 and 687/1987. The said writ petitions were
dismissed by the Hon'ble High Court of Delhi vide its judgment dated
09.05.1991 and no Special Leave Petition was preferred against the same.
It is averred that the defendants again tried to dispossess the occupants of
Chandiwala Bagh, on which civil suit bearing No. 60/08 for permanent
injunction was filed by one of the occupants namely I.S. Goel against the
Union of India and ASI. The said suit was decreed by the Ld. Civil
Judge, West, Tis Hazari Courts, Delhi under Order XII Rule 6 CPC vide
order dated 24.09.2012, while holding that the land in question i.e. Bagh
Chandiwala is a private land and not government land, in terms of the
common order dated 22.02.1979, passed by Sh. O.P. Singla, Ld. ADJ.
8. It is submitted that the defendants are well aware of the ownership
and physical possession of the plaintiffs and their predecessors of the suit
property for a long period of time and the same is also evident from the
property tax, electricity & water bills, receipts, ration cards, kitbook
entries made by Late father of plaintiff no.1, which dates back to the year
1968. Hence, the present suit has been filed, seeking following reliefs:-
CS SCJ No. 83753/16 Ram Bhawan Singh Chauhan vs. SDMC & Ors. 5 of 25
(a) Pass an order and decree of permanent and prohibitory injunction,
restraining the defendants, their officers, agents, servants from interfering
with the possession of the plaintiffs of the suit property being S-1351,
Chandiwala Bagh, Nizamuddin East, New Delhi-110013.
(b) Pass an order and decree of permanent and prohibitory injunction,
restraining the defendants, their officers, agents, servants from
demolishing the suit property herein without following the due process of
law.
9. Defendant no.1/SDMC (now being unified as 'MCD') has filed the
written statement and submitted therein that the defendant no.1 had
assisted the defendant no.2/L & DO and defendant no.3/ASI in removing
the illegal structure/ encroachment from its land situated at Chandiwala
Bagh, Nizamuddin, Delhi. Some part of the property in question was
demolished. The remaining part of illegal structure of the suit property
comprising of Ground Floor & First Floor is old and occupied. It is
further submitted that plaintiffs have undertaken to vacate the suit
property. It is further submitted that the Building Department, Central
Zone, MCD had assisted in the encroachment removal action taken on
29.11.2012, in the presence of officials of defendant no. 2/L & DO,
defendant no.3/ASI & Delhi Police.
CS SCJ No. 83753/16 Ram Bhawan Singh Chauhan vs. SDMC & Ors. 6 of 25
10. In the written statement filed by defendant no.2/L & DO, it is
submitted that the plaintiffs are in unauthorized occupation of the
government land and they have not come before the court with clean
hands. It is averred that the land in question was notified for acquisition
by the-then imperial government for a public purpose i.e. for the
construction of New Capital of India at Delhi vide Gazette Notification
No.775 dated 21.12.1911. The land was acquired and now consequent to
acquisition proceedings culminating in award No.163 dated 13.01.1914,
it is under the ownership of Union of India. Subsequently, it was mutated
vide mutation no.104 in the year 1915. It is submitted that neither the
plaintiffs nor Seth Mukhram Chandiwala are the owners of the suit
property. It is averred that the plaintiffs and some other persons have
encroached upon the land in question and constructed unauthorized
structures including houses over it, however, all unauthorized structures
were demolished and all the inhabitants except the plaintiffs were
removed during the last demolition carried out on 29.11.2012. The
plaintiffs were given 10 days time to vacate the suit property, on account
of the fact that one paralyzed person was lying therein. It is further
submitted that the judgments/ orders relied upon by the plaintiffs do not
relate to the suit property as the parties to the said litigation were
different. It is prayed that the suit may be dismissed as the plaintiffs have
no right over the suit property to claim the relief of injunction.
CS SCJ No. 83753/16 Ram Bhawan Singh Chauhan vs. SDMC & Ors. 7 of 25
11. Defendant no.3/ASI had also filed the written statement submitting
therein that the suit property falls in the prohibited area of Arab Ki Sarai,
a centrally protected monuments, where no construction is allowed as per
the provisions of Ancient Monuments & Archaeological Sites & Remains
Act, 1958.
12. By way of the present application under Order XII Rule 6 CPC,
plaintiffs have submitted that the defendants have not placed any
documents on record to prove that the suit property is a government land
and the issue of ownership with respect of land in question i.e. Bagh
Chandiwala has long been decided against the defendants by Sh. O.P.
Singla, Ld. ADJ in PPA No. 54/78 & 55/78 vide common order dated
22.02.1979. It is submitted that the said order has already attained finality
after dismissal of writ petitions no. 2616/1986 & 687/1987. It is further
submitted that the defendants have admitted the said order passed by Sh.
O.P. Singla and possession of the plaintiffs in the suit property and
therefore, the present suit may be decreed under Order XII Rule 6 CPC.
13. On the other hand, defendant no.2 has objected to this application
by submitting that the question of title can only be decided by a Civil
Court and therefore, order dated 22.02.1979, passed by Sh. O.P. Singla,
Ld. ADJ cannot operate as res-judicata to the peculiar facts of the present
case. It is further submitted that the Hon'ble Delhi High Court, while
CS SCJ No. 83753/16 Ram Bhawan Singh Chauhan vs. SDMC & Ors. 8 of 25
dismissing the writ petition bearing No. 2616/86 & 687/87 had
categorically observed that the question of ownership is a pure question
of fact which cannot be gone into in the writ proceedings, which shows
that the order dated 22.02.1979 cannot be said to have finally decided the
question of title of the suit property. It is further submitted that no
admission of any sort has been made by the defendant no.2, so as to
entitle the plaintiffs of any judgment on admission. It is thus prayed that
the application may be dismissed with costs.
14. I have heard the submissions made by Ld. counsel for the parties
and carefully perused the record.
15. This suit has been filed by the plaintiffs for the relief of permanent
& prohibitory injunction simpliciter, for restraining the defendants from
interfering in the possession of the plaintiffs of the suit property and from
demolishing the suit property without the due process of law. It is trite
law that settled lawful possession of the plaintiff is sufficient to obtain
the relief of injunction, if there is no genuine dispute with respect to the
title of the suit property. Thus, the two aspects that have to be looked
into, in order to decide the application under consideration is firstly,
whether, the defendants have admitted the possession of the plaintiff in
the suit property and secondly, whether the dispute with respect to the
title of the suit property has already been settled against the defendants.
CS SCJ No. 83753/16 Ram Bhawan Singh Chauhan vs. SDMC & Ors. 9 of 25
16. With regard to the question of admission, it has been argued by Ld.
Counsel for the plaintiffs that the defendants have admitted that the suit
property is in possession of the plaintiffs. Reliance in this regard has
been placed upon the judgments of the Hon'ble Apex Court in the case
titled as Raveesh Chand Jain vs. Raj Rani Jain, 2015 (2) SCJ 469 and
Karam Kapahi & Ors. vs. Lal Chand Public Charitable Trust & Ors., AIR
2010 SC 2077. On the contrary, Ld. Counsel for the defendant no.2 has
argued that no clear, unequivocal or unambiguous admission, which
warrants the passing of judgment under Order XII Rule 6 has been made
by the defendants. Reliance has been placed upon the judgments titled as
Himani Alloys Ltd. vs. Tata Steel Ltd. (2011) 7 SCR 60, Dinesh Sharma
vs. Krishna Kainth, RFA No. 293/2021, Delhi Jal Board vs. Surendra P
Malik 104 (2003) DLT 151, Square Four Assets Management &
Reconstruction Co. P. Ltd. & Ors. vs. Orient Beverages Ltd. & Ors.
17. As regards the scope of the admissions under order XII Rule 6
CPC, the Hon'ble Supeme Court in case titled as Karam Kapahi & Ors.
vs. Lal Chand Public Charitable Trust & Ors (Supra) observed as under: -
"49. If the provision of order 12 Rule 1 is compared with
Order 12 Rule 6, it becomes clear that the provision of
Order 12 Rule 6 is wider in as much as the provision of
order 12 Rule 1 is limited to admission by `pleading or
otherwise in writing' but in Order 12 Rule 6 the expression
`or otherwise' is much wider in view of the words used
CS SCJ No. 83753/16 Ram Bhawan Singh Chauhan vs. SDMC & Ors. 10 of 25
therein namely: `admission of fact.........either in the
pleading or otherwise, whether orally or in writing'.
50. Keeping the width of this provision in mind this Court
held that under this rule admissions can be inferred from
facts and circumstances of the case [See Charanjit Lal
Mehra and others v. Kamal Saroj Mahajan (Smt.) and
another, (2005) 11 SCC 279 at page 285 (para 8)].
Admissions in answer to interrogatories are also covered
under this Rule [See Mullas's commentary on the Code,
16th Edition, Volume II, page 2177].
51. In the case of Uttam Singh Duggal & Co. Ltd., v.
United Bank of India and others, (2000) 7 SCC 120, this
Court, while construing this provision, held that the Court
should not unduly narrow down its application as the
object is to enable a party to obtain speedy judgment."
18. Further, in case titled as Karan Kapoor vs. Madhuri Kumar;
(2022)10 SCC 496, the Hon'ble Apex Court laid down the power of the
Court under Order XII Rule 6 CPC as follows: -
"23. Order 12 Rule 6 confers discretionary power to a court
who "may" at any stage of the suit or suits on the
application of any party or in its own motion and without
waiting for determination of any other question between
the parties makes such order or gives such judgment as it
may think fit having regard to such admission.
24. Thus, legislative intent is clear by using the word
"may" and "as it may think fit" to the nature of admission.
The said power is discretionary which should be only
exercised when specific, clear and categorical admission of
facts and documents are on record, otherwise the court can
refuse to invoke the power of Order 12 Rule 6. The said
CS SCJ No. 83753/16 Ram Bhawan Singh Chauhan vs. SDMC & Ors. 11 of 25
provision has been brought with intent that if admission of
facts raised by one side is admitted by the other, and the
court is satisfied to the nature of admission, then the parties
are not compelled for full-fledged trial and the judgment
and order can be directed without taking any evidence.
Therefore, to save the time and money of the court and
respective parties, the said provision has been brought in
the statute. As per above discussion, it is clear that to pass a
judgment on admission, the court if thinks fit may pass an
order at any stage of the suit. In case the judgment is
pronounced by the court a decree be drawn accordingly
and parties to the case is not required to go for trial."
19. In the case of Uttam Singh Dugal & Co. Ltd. vs United Bank of
India & Ors. (2000) 7 SCC 120, the Hon'ble Supreme Court dealt with
purpose of Order XII Rule 6 CPC and observed as under: -
"As to the object of Order 12 Rule 6, we need not say
anything more than what the legislature itself has said
when the said provision came to be amended. In the
Objects and Reasons set out while amending the said Rule,
it is stated that "where a claim is admitted, the court has
jurisdiction to enter a judgment for the plaintiff and to pass
a decree on admitted claim. The object of the Rule is to
enable the party to obtain a speedy judgment at least to the
extent of the relief to which according to the admission of
the defendant, the plaintiff is entitled". We should not
unduly narrow down the meaning of this Rule as the object
is to enable a party to obtain speedy judgment. Where the
other party has made a plain admission entitling the former
to succeed, it should apply and also wherever there is a
clear admission of facts in the face of which it is
CS SCJ No. 83753/16 Ram Bhawan Singh Chauhan vs. SDMC & Ors. 12 of 25
impossible for the party making such admission to
succeed."
20. In Delhi Jal Board vs Surendra P. Malik, 104(2003) DLT15, the
Hon'ble Delhi High Court held as under: -
"8. The provision confers almost sweeping powers on the
Court to render a speedy judgment in the suit to save the
parties from going through the rigmarole of a protracted
trial. The only pre-requisite for this is that there must be
admissions of fact arising in the suit, be that in the
pleadings or otherwise or orally or in writing. Such
admission of facts must be clear and unequivocal,
unconditional and unambiguous and may relate to the
whole claim or a part of it. These need not be made
specifically or expressly and could be a constructive
admissions also. Whether or not such admission arose in
the suit would depend on the facts and circumstances of the
case. If it involved disputed facts, claims and counter
claims requiring evidence of parties for determination of
issues or where the defense of a party touched the root of
the matter, a judgment could not be passed under Order 12
Rule 6 dispensing with the trial because the valuable right
of going to trial could not be taken away from the party
unless the claim was admitted. A duty was, therefore, cast
on the court to ascertain the admission of facts and to
render judgment on these either in respect of the whole
claim or a part of it. The court could do so on its own or on
the application of a party and without waiting for the
determination of any other question between the parties. It
could do so at any stage of the suit..........
9. The test, therefore, is (i) whether admissions of fact arise
in the suit, (ii) whether such admissions are plain,
unambiguous and unequivocal, (iii) whether the defense set
CS SCJ No. 83753/16 Ram Bhawan Singh Chauhan vs. SDMC & Ors. 13 of 25
up is such that it requires evidence for determination of the
issues and (iv) whether objections raised against rendering
the judgment are such which go to the root of the matter or
whether these are inconsequential making it impossible for
the party to succeed even if entertained. It is immaterial at
what stage the judgment is sought or whether admissions
of fact are found expressly in the pleadings or not because
such admissions could be gathered even constructively for
the purpose of rendering a speedy judgment."
21. The observations made by the superior courts in the abovenoted
precedents makes it manifest that the provision under Order XII Rule 6
CPC empowers the Court trying the suit, to deliver judgment based on
admissions, whenever such admissions are sufficient for the grant of the
relief prayed for.
22. In the instant case, from bare perusal of the written statements,
filed by the Defendants, it can be inferred that the plaintiffs are in
possession of the suit property as the entire case of the defendants is that
the plaintiffs having encroached upon the government land are in
unauthorized possession of the suit property. Further, defendant no. 2 has
categorically stated in its Written Statement that the during the
demolition proceedings dated 29.11.2012, the occupants of the suit
property were given time of 10 days to vacate the same and the Writ
Petition filed by them before the Hon'ble High Court of Delhi was
dismissed vide order dated 19.12.2012. The copy of said order dated
CS SCJ No. 83753/16 Ram Bhawan Singh Chauhan vs. SDMC & Ors. 14 of 25
19.12.2012, which is on record and relied upon by the defendants show
that the said writ petition was filed by the plaintiffs. In the given
background, it can be deduced that the defendant no.2 has admitted that
the plaintiffs are in possession of the suit property being its occupants.
Further, defendant no.1/ MCD has categorically averred in its written
statement that the plaintiffs have undertaken to vacate the suit property,
which further leads to an admission on its part qua the possession of the
plaintiffs of the suit property. In view of the abovenoted conspectus of
facts, circumstances & law laid down by the superior courts, the question,
whether there has been an admission with regard to the possession of suit
property with the plaintiffs, can safely be decided in favour of the
plaintiffs.
23. Now, the question that remains to be decided is whether the dispute
with respect to the title of the suit property stands settled or not. It is the
case of the plaintiffs that Sh. O. P Singla has decided the dispute qua the
title of the suit property, vide common order dated 22.02.1979 by holding
that the suit property is a private land of Seth Mukhram and not a
government land. On the contrary, Ld. Counsel for the defendants have
submitted that order dated 22.02.1979, passed by Sh. O.P. Singla cannot
be said to be final adjudication with regard to the title of the land in
question as it has not been passed by a civil court and therefore, same
cannot be relied upon to adjudicate the instant lis.
CS SCJ No. 83753/16 Ram Bhawan Singh Chauhan vs. SDMC & Ors. 15 of 25
24. It is admitted fact that in Order dated 22.02.1979, passed by Sh.
O.P. Singla Ld. ADJ in appeals bearing PPA no. PPA No. 54/78 & 55/78,
it was held that the land in question i.e. the Bagh Chandiwala is a private
land owned by Seth Mukhram and others and it is not a government land.
The relevant paragraphs of the said order are reproduced as under: -
"9. The intention to acquire the land by the Govt. in
1912 may not have been carried out or actual possession
may not been taken. The revenue entries in the record of
rights seem to be rather arbitrary and a little close
examination of the revenue entries of 1960-61 in the
'Record of Rights' Jamabandi PX-6 would make it clear.
In column No. 5, Department P.W.D is recorded to be in
possession but in the Khasra-girdawari entries of the
proceeding khasra-girdawari from which this must be taken
the entry is in the name of Mukha Ram, Baij Nath in 1960-
61. It would appear that the 'Record of Rights' is not
prepared with care, and the occupation of Deptt. P.W.D is
recorded without enquiry or existence in fact.
10. In fact, the same appears to be a case about the
alleged ownership of the Govt. of India of this land. Even
the intention of acquisition does not specify that this land
was also included in the acquisition because only area is
mentioned there and not the exact boundaries of the area
sought to be acquired in village Nizamuddin. The evidence
of Mukha Ram examined by the Appellants on 4.1.72
assumes importance................
11. In cross-examination suggestion were given to him
about there being cycle-stand in the land and about there
being a Govt. store on the land and there being coal tar tins
lying in the land. He denied each one of these suggestions
and the Govt. did not lead any evidence in support of any
CS SCJ No. 83753/16 Ram Bhawan Singh Chauhan vs. SDMC & Ors. 16 of 25
of these suggestions. The Estate Officer was in error in not
believing Ram, who had given clear, truthful and detailed
evidence negative the Govt. case of this land or taking over
possession of this land over. His statement, which is
credible and acceptable was wrongly dismissed by the
Estate Officer and it rebuts the presumption raised by the
'Record of Rights' in 1925-26 to 1970-71. There is no
reason whatsoever to disbelieve Mukh Ram and it appears
clear that ever since the purchase in 1910, the owners of
their lessees have been in possession of this land and the
Govt. of India never occupied this land. It is very doubtful
if they ever acquired this land.
12. In the result, the appeals are accepted and the
judgments of the Estate Officer are set-aside because the
land in question is not Got. Land and is private land owned
by Mukh Ram and others, whose lessees I.S. Goel and Co.
and R.K. Mehra, and are in lawful possession of the land
leased to them by owners. There shall be, however, no
Order as to costs of these appeals."
25. The question that arises at this juncture is whether the finding
given by the Ld. ADJ, vide order dated 22.02.1979 regarding the title of
the land in question i.e. Bagh Chandiwala, within which the suit property
is situated, being Appellate Authority under Public Premises Act,1971,
would amount to a finding given by a civil court or not. In answer to the
said question, reliance can be placed upon the judgment of the Hon'ble
Apex Court in case titled as Life Insurance Corporation of Indiavs.
Nandini J Shah & Ors. AIR 2018 SC 1197 wherein, while delving upon a
similar question, it was held that the Appellate Authority under the Public
CS SCJ No. 83753/16 Ram Bhawan Singh Chauhan vs. SDMC & Ors. 17 of 25
Premises Act, 1971 acts as a court and not as persona designate. The
relevant paragraphs of the said judgment are as under: -
"29. The avowed purpose for enacting the 1971 Act was to
provide for a speedy remedy for taking possession of the
public premises which were in unauthorized occupation.
For achieving the said goal, an Estate Officer is appointed
under Section 3 of the Act who has been given powers to
issue notice of show cause and initiate proceedings for
eviction and recovery of outstanding rental dues and
damages in respect of public premises. Section 8 empowers
the Estate Officer to exercise the same powers as are vested
in a civil court under the Code of Civil Procedure, 1908.
We are not called upon to consider the question as to
whether the Estate Officer, while exercising powers
invested in him, acts as a court or has the trappings of a
court. The only question that we have attempted to answer
is whether the appointment of the appellate officer referred
to in Section 9 of the Act before whom an appeal shall lie,
is in the capacity of persona designata or as a court.
30. Sub-section (1) of Section 9 is the core provision to be
kept in mind for answering the point in issue. It postulates
that an appeal shall lie from every order of the estate
Officer, passed under the Act, to an Appellate Officer. As to
who shall be the Appellate Officer, has also been specified
in the same provision. It predicates the District Judge of the
district in which the public premises are situated or such
other judicial officer in that district of not less than 10
years standing as the District Judge to be designated for
that purpose. The first part of the provision does suggest
that the appeal shall lie to an Appellate Officer, however, it
does not follow therefrom that the Appellate Officer is
persona designata. Something more is required to hold so.
Had it been a case of designating a person by name as an
Appellate Officer, the concomitant would be entirely
CS SCJ No. 83753/16 Ram Bhawan Singh Chauhan vs. SDMC & Ors. 18 of 25
different. However, when the Appellate Officer is either the
District Judge of the district or any another judicial officer
in that district possessing necessary qualification who
could be designated by the District Judge, the question of
such investiture of power of an appellate authority in the
District Judge or Designated Judge would by no standards
acquire the colour or for that matter trappings of persona
designata. In the first place, the power to be exercised by
the Appellate Officer in terms of Section 9 is a judicial
power of the State which is quite distinct from the
executive power of the State. Secondly, the District Judge
or designated judicial officer exercises judicial authority
within his jurisdiction. Thirdly, as the Act predicates the
Appellate Officer is to be a District Judge or judicial
officer, it is indicative of the fact of a pre existing authority
exercising judicial power of the State. Fourthly, District
Judge is the creature of Section 5 of the Maharashtra Civil
Courts Act, 1869, who presides over a District Court
invariably consisting of more than one Judge in the
concerned district. The District Court exercises original
and appellate jurisdiction by virtue of Sections 7 and 8
respectively, of the 1869 Act and is the principal Court of
original civil jurisdiction in the district within the meaning
of C.P.C., as per Section 7 of that Act............
....... The District Judge/Principal Judge of the City Civil
Court and other judicial officers of these Courts possessing
necessary qualifications constitute a class and cannot be
considered as persona designata. The Appellate Officer,
therefore, has to function as a Court and his decision is
final in terms of Section 10 of 1971 Act. The legislative
intent behind providing an appeal under Section 9 before
the Appellate Officer to be the District Judge of the
concerned District Court in which the public premises are
situated or such other judicial officer in that district
CS SCJ No. 83753/16 Ram Bhawan Singh Chauhan vs. SDMC & Ors. 19 of 25
possessing necessary qualification to be designated by the
District Judge for that purpose, is indicative of the fact that
the power to be exercised by the Appellate Officer is not in
his capacity as persona designata but as a judicial officer of
the pre existing Court. The historical background of the
1971 Act would make no difference to the aforementioned
analysis."
26. Thus, the necessary corollary to the observations made by the
Hon'ble Apex Court in the abovenoted judgment is that the order passed
by the Appellate authority under the Public Premises Act, 1971 shall have
the effect of an order passed by a competent court/ judicial authority.
27. At this stage, it would be apposite to refer to the judgments of the
Hon'ble Delhi High Court in case titled as DCM Limited vs. Delhi
Development Authority, ILR (2013) I DELHI 337 and Ishmali Devi vs.
DDA, 2012 SCC Online Del 5413 wherein, while relying upon the
constitution bench judgment of the Hon'ble Apex Court in case titled as
Ashoka Marketing Ltd. And Anr. vs. Punjab National Bank And Ors.
1990 (4) SCC 406, it was observed that the Estate Officer under the
Public Premises Act, 1971 is competent to decide all the issues of facts &
law including that of title/ownership, complicated or not, which arise
between the parties to the proceedings before him and the jurisdiction of
the civil court is barred under section 15 (a) of the Public Premises
Act,1971, in respect of any order passed by the Estate officer for eviction
of unauthorized occupants.
CS SCJ No. 83753/16 Ram Bhawan Singh Chauhan vs. SDMC & Ors. 20 of 25
28. Similar view was taken by the Hon'ble Bombay High Court in case
titled as Union Of India vs Laxman Yadneshwar Sathe, 2018 SCC Online
Bom 815. The relevant paragraphs of the said judgment are reproduced
as under: -
"27. As a matter of fact, the entire scheme of the Public
Premises Act contains a clear bar to the jurisdiction of the
Civil Court to entertain any suit pertaining to the steps
taken under the said Act. Respondent is trying to give go
by to that scheme by raising the dispute of title and ownership over the suit property, which should not have been permitted by the Trial Court. Otherwise in each and every such action taken by the Estate Officer, if Civil Court keeps on entertaining the suit on mere raising of dispute relating to title and proceed to grant the relief of injunction, as claimed in this suit, restraining the Estate Officer from proceeding with the enquiry, the very object of the Public Premises Act would be frustrated.
28. Here, in the case, Estate Officer has already issued the notice to the Respondent under Section 4 of the said Act and therefore, in view of the bar created under Section 10 of the Public Premises Act, the Respondent cannot challenge the said proceedings in the Civil Court so as to override the provisions of the Public Premises Act....."
29. Judging on the touchstone of the abovenoted precedents and facts & circumstances of the instant case, it would be correct to hold that the question of title/ownership qua the land in question i.e Bagh Chandiwala, wherein the suit property is situated has been decided by the court of competent jurisdiction vide order dated 22.02.1979. It is relevant to point out that the said order was passed by the Ld. ADJ after taking into CS SCJ No. 83753/16 Ram Bhawan Singh Chauhan vs. SDMC & Ors. 21 of 25 consideration, the evidence adduced by the parties. Further, the said order has attained finality as the Writ Petition, filed against the same by the Union of India was dismissed by the Hon'ble Delhi High Court vide its judgment dated 09.05.1991 and no Special Leave Petition was preferred against the same. The relevant portion of the order dated 09.05.1991, passed by the Hon'ble Delhi High Court in Writ Petitions no. 2616/86 & 687/87 is reproduced as under: -
".....It is an undisputed position that the respondent has been in possession of the disputed land since 1963. The petitioner initiated proceedings under the Act only in the year 1969. From the year 1969 till date the petitioner has not been able to produce any record to show that the land was acquired by the petitioner or that it had vested in the government. The Additional District Judge refused to rely on the Jamabandi because the entries in Khasra Girdavaris and Jamabandi were at variance. The Additional District Judge has observed that the question of ownership cannot be decided only by looking at the Jamabandi. The Additional District Judge further observed that the land was purchased by way of a sale deed dated 10.08.1910 and the mutation was effected in the name of Baldev & Others in 1912. Khasra Girdavri entries also indicate that Baij Nath & Others were in possession since 1957. It is observed that the "Record of Right" is not prepared with care and the occupation of P.W.D appears to be recorded without existence.
In our view, question of ownership is a pure question of fact which cannot be gone into in proceedings under Article 226 of the Constitution of India. In any event, in our view, no damages can be levied on the respondent unless ownership is proved by the petitioner.
CS SCJ No. 83753/16 Ram Bhawan Singh Chauhan vs. SDMC & Ors. 22 of 25 We have also perused the alleged notification dated 21.12.1911. We find that Khasra number of the land in question has not been specifically mentioned in this notification, though the name of the Village is mentioned. The petitioner has not placed anything on record to show that the government took possession of the land any time after 1911.
We also fined great force in the contention that these writ petitions are hopelessly time barred and the petitioner is guilty of latches. The reasons given by the petitioner for not filing the writ petitions till March 1986 are far from convincing. The impugned order was passed on 22.2.1979 and except stating that the file had passed through the hands of several counsel, no convincing reason is forthcoming to explain the delay in filing the writ petition. Learned counsel for the petitioner prayed for a further opportunity to search for the documents of acquisition of the land and prayed that the orders be deferred for a period of one week. In our view, no useful purpose will be served in adjourning the case any longer. If the petitioner could not trace the documents for 30 years. We fail to see how the petitioner can trace them in a week.
In the circumstances, we see no merit in the writ petitions. Dismissed. Rule is discharged. The respondent will be entitled to costs quantified at Rs. 3,000/-"
30. Bare perusal of the said orders passed by the Ld. ADJ & the Hon'ble Delhi High Court reflects that time & again, the defendants have failed to produce any document on record in support of its claim that the land in question has been acquired by the govt. Even in the present proceedings, defendants have failed to produce any document to show that the land in question was acquired and its possession was taken over CS SCJ No. 83753/16 Ram Bhawan Singh Chauhan vs. SDMC & Ors. 23 of 25 by the government. The jamabandis have already been negated by the Ld. ADJ as the entries in the khasra girdavaris & jamabandis were at variance. Thus, the finding of the Ld. ADJ that the land in question is not a government land has significant bearing on the adjudication of the application under consideration. Defendant no.2 had further failed to respond to the query of the Ld. Predecessor, raised vide order dated 20.12.2019, that in which manner, it wants to evict the plaintiffs from the suit property. Further, the defendants have not disputed the common order dated 22.02.1979, passed by the Ld. ADJ. The possession of the plaintiffs of the suit property has also been admitted by the respondents as discussed above. Admittedly, plaintiffs are neither claiming the title of the suit property nor raising any construction over it. Plaintiffs are only asking that the defendants be restrained from disturbing their possession & from demolishing the suit property without following the due process of law. (emphasis supplied) It is settled law that a person in continuous & settled possession cannot be dispossessed except by the due process of law. Reliance in this regard could be placed upon the judgments of the Hon'ble Supreme Court in case titled as Rame Gowda (D) by L.Rs vs. M. Varadappa Naidu (D) by L.Rs, (2004) 1 SCC 769 & Puran Singh & Ors vs, The State Of Punjab (1975) 4 SCC 518.
31. In the given circumstances & facts, the admitted possession of the plaintiffs of the suit property coupled with the decision of Ld. ADJ that CS SCJ No. 83753/16 Ram Bhawan Singh Chauhan vs. SDMC & Ors. 24 of 25 the land in question i.e. Plot No. 16-A, Chandiwala Bagh, Delhi is a private land owned by Seth Mukhram and not a Govt. land, in the opinion of this court, is sufficient to pass judgment on admission and thereby granting the relief of permanent injunction to the plaintiffs.
32. Thus, in view of the abovenoted discussion, the application under Order XII Rule 6 CPC, filed by the plaintiffs stands allowed. Accordingly, suit of the plaintiffs stands decreed to the effect that the defendants, its officers, agents & servants are permanently restrained from interfering in the peaceful possession of the plaintiffs of the suit property and from demolishing the suit property without following the due process of law.
33. Decree Sheet be prepared accordingly.
34. File be consigned to the Record Room, after due compliance.
Digitally
signed by
RUBY RUBY NEERAJ
Announced in the open court KUMAR
NEERAJ
on 26.09.2024 Date:
KUMAR 2024.09.26
16:46:42
+0530
(Ruby Neeraj Kumar)
SCJ-cum-RC
South District, Saket Courts,
New Delhi
CS SCJ No. 83753/16 Ram Bhawan Singh Chauhan vs. SDMC & Ors. 25 of 25