Delhi District Court
Chhotu Ram Solanki Memorisal vs Govt. Of Nct Of Delhi on 17 May, 2019
IN THE COURT OF SH. ARUN KUMAR GARG:
ADMINISTRATIVE CIVIL JUDGE cum COMMERCIAL
CIVIL JUDGE cum ADDITIONAL RENT CONTROLLER:
SOUTH WEST DISTRICT : DWARKA COURTS :
NEW DELHI
C.S No: 426647/16
IN THE MATTER OF
Chhotu Ram Solanki Memorisal
Educational Society (Regd.)
WZ727A, Palam Village,
New Delhi - 110045
Through its President
Shri Dhan Singh .....Plaintiff
Versus
1. Govt. of NCT of Delhi
Through Secretary
Secretariat, I.P.Estate
New Delhi
2. Block Development Officer (S/W Distt.)
Najafgarh
New Delhi 110043 ...... Defendants
Date of filing : 19.10.2012
Date of Institution : 20.10.2012
Date of pronouncing judgment : 17.05.2019
SUIT FOR PERMANENT INJUNCTION
JUDGMENT
CS No.426647/17
Chhotu Ram Solanki Memorisal Education Scoiety Vs. Govt. of NCT of Delhi & Ors. Judgment dated 17.05.2019 Page 1 of 25
1 By this judgment, I will dispose of the present suit of plaintiff for permanent injunction restraining the defendants from demolishing school building constructed in property No.WZ 727A, Village Palam, New Delhi as shown in the site plan annexed with the plaint.
2 Brief case of the plaintiff, as per plaint, is that plaintiff is a registered society running a school upto 8th class under the name and style of Chhotu Ram Public School which has been recognized by the Education Department of Govt. of NCT of Delhi vide letter dated 13.12.1996 and about 450 children are studying in the said school. It is further the case of plaintiff that said building of school was constructed in the year 1993 in property No. 61/19/1, situated at Palam Village, New Delhi and some part of the school falls in the khasra no.61/19/2 belonging to gram sabha. The aforesaid land of gram sabha, according to plaintiff, has not been demarcated, however, the same is being used by plaintiff for betterment of people of locality, in as much as, the land of gram sabha having been surrounded by other properties is incapable of any other use. Plaintiff society has also written a letter dated 30.08.2011 to defendant no.2 for CS No.426647/17 Chhotu Ram Solanki Memorisal Education Scoiety Vs. Govt. of NCT of Delhi & Ors. Judgment dated 17.05.2019 Page 2 of 25
regularization of the same informing that one Sh.Med Singh S/o Sh. Kartar Singh is willing to give his 11 biswas land in lieu of land of gram sabha falling in school building, however, the defendant no.2 has not taken any action till date on the aforesaid representation of the plaintiff and recently, the plaintiff has come to know that on the basis of some false complaints, defendant no.2 is going to demolish school building in the garb of gram sabha land. On 15.10.2012, according to plaintiff, officer of defendants visited the school and threatened to demolish the building without any show cause notice in violation of provisions of National Capital Territory of Delhi Laws (Special Provisions) 2nd Act 2011. Plaintiff has thus filed the present suit for permanent injunction against the defendants. 3 Upon receipt of plaint, summons of the suit were directed to be issued to defendants vide order dated 20.10.2012. Defendants entered appearance through their counsel and filed their written statement on 16.01.2013 alleging that since admittedly the building of school has been constructed by the plaintiff on gram sabha land, plaintiff has no right, title or interest in the same and hence, the present suit of plaintiff for permanent injunction CS No.426647/17 Chhotu Ram Solanki Memorisal Education Scoiety Vs. Govt. of NCT of Delhi & Ors. Judgment dated 17.05.2019 Page 3 of 25
against defendants is not maintainable. It is further submitted in the aforesaid written statement that Govt. has already laid down various policies in which gram sabha land can be put into use for the society at large and for public welfare and the land can only be used for the aforesaid purpose by Govt. It is further submitted in the written statement that defendant no.2 is not appropriate authority for regularization of school of plaintiff and for exchange of land of gram sabha with land of any other person on the basis of representation of plaintiff dated 30.08.2011 and the aforesaid facts have already been brought to the notice of plaintiff by defendant no.2.
4 It has further been alleged in the written statement that suit land before raising construction of the school by plaintiff was being used as a small water reservoir to enhance the ground water level to avoid various natural calamities but the plaintiff with ulterior motive has raised school building on the said land for its personal benefit. It has further been submitted in the written statement that the suit of plaintiff is without any cause of action considering the fact that neither the defendant nor its officials had ever visited the suit property and threatened the plaintiff to CS No.426647/17 Chhotu Ram Solanki Memorisal Education Scoiety Vs. Govt. of NCT of Delhi & Ors. Judgment dated 17.05.2019 Page 4 of 25
demolish the school building without adopting the due procedure of law. The defendants have thus prayed for dismissal of the present suit.
5 Replication to the aforesaid written statement was thereafter filed by the plaintiff on 13.05.2013 wherein plaintiff has once again reiterated the averments made by him in the plaint and has denied the contrary averments made by the defendants in their written statement. It has further been alleged in the replication that in case defendant no.2 has no jurisdiction to decide the representation of plaintiff dated 30.08.2011, it was for him to forward the same to the concerned department of defendant no.1. It has also been alleged that the land in question is not being used for water reservoir for last more than 40 years either by defendants or by residents of the said area. 6 Thereafter, on the basis of pleadings of the parties, following issues were settled by Ld. Predecessor of this Court vide order dated 01.02.2018:
1. Whether the plaintiff is entitled to a decree of permanent injunction, as prayed for? OPP
2. Relief CS No.426647/17 Chhotu Ram Solanki Memorisal Education Scoiety Vs. Govt. of NCT of Delhi & Ors. Judgment dated 17.05.2019 Page 5 of 25
7 Plaintiff has thereafter examined three witnesses in support of his case. Sh.Dhan Singh, President of plaintiff society has been examined as PW1 who has tendered his evidence by way of affidavit Ex.PW1/A alongwith following documents:
1. Mark A :Copy of certificate of registration
2. Mark B: Copy of memorandum of society;
3. Ex.PW1/3 (Colly): Copy of minutes of meeting
4.Mark C: Copy of letter dated 13.12.1996 issued by the Office of Deputy Director of Education
5. Ex.PW1/5: Site Plan
6. Ex.PW1/6: Copy of letter dated 30.08.2011
7.Ex.PW1/7: Copy of the eviction notice dated 03.11.2012 issued by BDO, SouthWest
8. Ex.PW1/8:Copy of Reply dated 07.11.2012 to eviction notice dated 03.11.2012
8 Sh.R. D. Meena, Assistant Section Officer from Office of Dy.
Director of Education, Distt. South West, Najafgarh, New Delhi had been examined as PW2 who has produced the original file pertaining to Sir Chhotu Ram Public School, Palam Village, New Delhi maintained at the office of Dy. Director of Education, Distt. South West, Najafgarh, New Delhi and a copy of letter dated 13.12.1996 was tendered by him as Ex.PW2/A. CS No.426647/17 Chhotu Ram Solanki Memorisal Education Scoiety Vs. Govt. of NCT of Delhi & Ors. Judgment dated 17.05.2019 Page 6 of 25
9 Sh. Saddam, Record Keeper from the office of SDM, Sector10, Dwarka has been examined as PW3 who has produced the copy of certificate of registration of plaintiff society alongwith memorandum of society which are Ex.PW3/A (colly). 10 All the three witnesses were duly cross examined by counsel for defendants and thereafter, on a separate statement of counsel for plaintiff, PE was closed vide order dated 17.01.2019 and matter was adjourned for DE.
11 Defendants have also examined three witnesses in support of their case. Sh.Jagdish Prasad, Extension Assistant (Agriculture), BDO (South West), Najafgarh, New Delhi, was examined as DW1 and has tendered his evidence by way of affidavit Ex.DW1/A alongwith copy of Aksizra of Village Palam, Khatoni for the year 200203 and Khasra Girdawari of the year 201314 and 201516 qua khasra no.61/19/2, Village Palam which is Ex.DW1/1 (Colly) and the site plan prepared through satellite of entire suit land including gram sabha land as Ex.DW1/2.
12 Sh.Prakash Singh S/o Sh. Chandan Singh Bisth, who had prepared the site plan Ex.DW1/2 has been examined by CS No.426647/17 Chhotu Ram Solanki Memorisal Education Scoiety Vs. Govt. of NCT of Delhi & Ors. Judgment dated 17.05.2019 Page 7 of 25
defendants as DW2 whereas Sh.Hariom S/o Sh. Kishan Chand has been examined as DW3 who has produed the original record pertaining to documents already Ex.DW1/1 (Colly). 13 All the aforesaid witnesses were duly cross examined by counsel for plaintiff and thereafter, on a separate statement of counsel for defendants, DE was closed vide order dated 11.02.2019. Final arguments on behalf of parties were thereafter heard.
14 It is submitted by counsel for plaintiff that plaintiff has been able to prove that the school in question had been constructed by plaintiff on the suit land somewhere in the year 199192 and the same had been duly recognized by Education Department of defendant no.1. He submits that since the plaintiff is in settled possession of the suit property, defendants cannot be permitted to dispossess the plaintiff except by way of due process of law. He further submits that action of defendants in issuing alleged eviction notice dated 03.11.2012 is not even in consonance with the judgment of Hon'ble Supreme Court in Jagpal Singh and Others Vs. State of Punjab and Others, Civil Appeal No.1132/11 decided on 28.01.2011, in as much as, defendants CS No.426647/17 Chhotu Ram Solanki Memorisal Education Scoiety Vs. Govt. of NCT of Delhi & Ors. Judgment dated 17.05.2019 Page 8 of 25
have failed to serve any show cause notice upon the plaintiff prior to alleged eviction notice.
15 Even otherwise, according to him, Hon'ble Supreme Court in the aforesaid judgment has observed that in case the school exists on the encroached Govt. land, the same shall be considered for the regularization. He submits that representation of plaintiff for regularization of the school is already pending and the defendants are not taking any action on the representation of the plaintiff and on the other hand, are trying to forcibly dispossess the plaintiff from the said land in violation of provisions of National Capital Territory of Delhi Laws (Special Provisions) 2nd Act 2011, which has been extended till 2020. He has more particularly relied upon Section 1(4), Section 2(1)(c), Section 3(1)(e) and Section 3(2) of the aforesaid Act. He further submits that provisions of Delhi Land Reforms Act, 1954, are not applicable to the land in question considering the admission on the part of defendants that Village Palam has already been urbanized somewhere in the year 2002
03. He has thus prayed for decree of the present suit in favour of plaintiff.
CS No.426647/17 Chhotu Ram Solanki Memorisal Education Scoiety Vs. Govt. of NCT of Delhi & Ors. Judgment dated 17.05.2019 Page 9 of 25
16 On the other hand, it is submitted by counsel for defendants that since admittedly the plaintiff is not the owner of land situated in Khasra No.61/19/2 (011) Village Palam, he is not entitled to relief of simplicitor injunction and in fact, plaintiff is indirectly seeking the relief of declaration of ownership over the gram sabha land under the garb of permanent injunction. 17 He submits that plaintiff has failed to file any site plan identifying the land allegedly belonging to the plaintiff and the land of the gram sabha covered by school, in the absence of which, no relief of permanent injunction can be granted in favour of plaintiff. He submits that on the one hand plaintiff has admittedly encroached the land of gram sabha and on the other hand, he has failed to dispute the demarcation report of the suit land filed by the defendants.
18 He submits that since the plaintiff in substance is seeking the relief of declaration of his ownership and the suit property is governed by the provisions of Delhi Land Reform Act, this court has no jurisdiction in the present suit, in as much as, jurisdiction to grant the relief of declaration of bhumidari rights in respect of the land pertaining to gram sabha lies with the CS No.426647/17 Chhotu Ram Solanki Memorisal Education Scoiety Vs. Govt. of NCT of Delhi & Ors. Judgment dated 17.05.2019 Page 10 of 25
Revenue Assistant and not with the Civil Court. He submits that in view of the authoritative pronouncement of Hon'ble Supreme Court in Anathula Sudhakar Vs. P. Buchi Reddy (dead) by LRs (2008) 4 SCC 594, plaintiff is not entitled to seek relief of injunction without seeking relief of declaration, in as much as, he is not in lawful possession of suit property. He submits that in view of the authoritative pronouncement of Hon'ble Supreme Court and Hon'ble Delhi High Court in Premji Ratansey Shah & Ors. Vs. Union of India 1994 (5) SCC 547 and Rajinder Kakkar & Others Vs. Delhi Development Authority (1994) 28 DRJ 133, a trespasser or the person in illegal possession is not entitled to the relief of injunction against true owner of property. Besides, according to him, in terms of judgment of Hon'ble Supreme Court in Shiv Kumar Chadha Etc. Vs. Municipal Corporation of Delhi, 1993 SCR (3) 522, the discretionary relief of injunction cannot be granted to a person who approaches the court with unclean hands. 19 He submits that plaintiff is not even entitled to protection under the provisions of National Capital Territory of Delhi Laws (Special Provisions) Second Act 2011, in as much as, the same CS No.426647/17 Chhotu Ram Solanki Memorisal Education Scoiety Vs. Govt. of NCT of Delhi & Ors. Judgment dated 17.05.2019 Page 11 of 25
protects a person from punitive action by any local authority against unauthorized development. Such local authority, according to him, means local authority such as MCD/NDMC & DDA. He submits that gram sabha cannot be considered to be a local authority for the purposes of Act and hence, there is no bar for gram sabha to take action against any person who encroaches its land. He submits that service of eviction notice dated 03.11.2012 by BDO upon the plaintiff is not contrary to the law in view of the presumption arising in favour of the official acts being regular.
20 He submits that plaintiff cannot be permitted to take a plea regarding dispute as to the identity of gram sabha land in view of the categorical admission on his part regarding the encroachment of land of gram sabha. He submits that the action of defendant no.2 in issuing the eviction notice dated 03.11.2012 is very well in consonance with direction of Hon'ble Supreme Court in Jagpal Singh and Others Vs. State of Punjab and Others, 2011 II AD (SC) 296. Even otherwise, according to him, the dispute about the demarcation is not within the realm of this court and the said dispute, if any, has to CS No.426647/17 Chhotu Ram Solanki Memorisal Education Scoiety Vs. Govt. of NCT of Delhi & Ors. Judgment dated 17.05.2019 Page 12 of 25
be resolved by Revenue Assistant as per rules and guidelines more particularly under the Provision of Section 28 of Delhi Land Revenue Act read with Rule 403 of Delhi Land Revenue Rules as held by Hon'ble Delhi High Court in Indrapastha Medical Corporation Ltd. Vs. National Highway Authority of India 2009 V AD (Delhi) 586. Counsel for defendants has thus prayed for dismissal of the present suit of plaintiff while relying upon another judgment of Hon'ble Delhi High Court in Sh.Madho Prasad Vs. Shri Ram Kishan & Ors. 2001 VII AD (Delhi) 72.
21 I have heard the submissions made on behalf of the parties and have also carefully gone through the record. My issuewise findings, on the basis of material available on record, in the light of submissions made on behalf of the parties, are as follows:
Issue No.1 Whether the plaintiff is entitled to a decree of permanent injunction, as prayed for? OPP
22 Onus to prove the aforesaid issue was upon the plaintiff.
Plaintiff has claimed the relief of permanent injunction restraining the defendants from demolishing its school situated CS No.426647/17 Chhotu Ram Solanki Memorisal Education Scoiety Vs. Govt. of NCT of Delhi & Ors. Judgment dated 17.05.2019 Page 13 of 25
in property no. WZ727A, Village Palam, New Delhi as shown in red colour in site plan on the ground that plaintiff is in settled possession of the land situated in khasra no.61/19/2, though, the same belongs to gram sabha. It has further been submitted by plaintiff that since the letter of plaintiff to defendant no.2 for regularization of the aforesaid land is already pending for consideration with defendant no.2, defendants are not entitled to evict the plaintiff from the suit property.
23 Even otherwise, according to him, act of demolition of the same is in violation of judgment of Hon'ble Supreme Court in Jagpal Singh's case (Supra) and the provisions of National Capital Territory of Delhi Laws (Special Provisions) Second Act 2011. 24 It has been categorically admitted by plaintiff that the school run by plaintiff society is partly constructed on land situated in Khasra No.61/19/2 which belongs to Gram Sabha, Village Palam, New Delhi and hence, the plaintiff has no right, title or interest in the same. Admittedly, the name of plaintiff has not been recorded in revenue record in respect of the land situated in khasra no.61/19/2 and plaintiff has not prayed for declaration of its ownership over the land situated in khasra no.61/19/2, CS No.426647/17 Chhotu Ram Solanki Memorisal Education Scoiety Vs. Govt. of NCT of Delhi & Ors. Judgment dated 17.05.2019 Page 14 of 25
Village Palam. Thus, in view of the authoritative pronouncement of Hon'ble Supreme Court in Anathula Sudhakar Vs. P. Buchi Reddy (dead) by LRs 2008 4 SCC 594 , it was incumbent upon the plaintiff to seek declaration of its title over the land situated in khasra no.61/19/2 before seeking the relief of permanent injunction.
25 It is significant to note that as per par 11.1 of the aforesaid judgment, it is only the person in lawful possession of the property who can maintain the simplicitor suit for injunction, that too, against the person who does not have a better title than that of the plaintiff. As per the above judgment, a person in wrongful possession is not entitled to relief of injunction against the rightful owner.
26 In the case in hand, admittedly, the plaintiff is in wrongful possession of the suit land of which the defendants are the rightful owners and hence, have a better title than that of the plaintiff. Suit of plaintiff for simplicitor injunction is thus not maintainable. Similar view has also been taken by Hon'ble Supreme Court in Premji Rattansey Shah & Ors. Vs. Union of India 1994 (5) SCC 547. Even otherwise, the said relief prayed CS No.426647/17 Chhotu Ram Solanki Memorisal Education Scoiety Vs. Govt. of NCT of Delhi & Ors. Judgment dated 17.05.2019 Page 15 of 25
for by plaintiff is barred by the provisions of Section 41(j) of Specific Relief Act.
27 The said relief of permanent injunction is also barred in view of the provisions of Section 41(i) of Specific Relief Act which requires that the person seeking the relief of injunction must approach the court with clean hands. However, in the case in hand, plaintiff has admittedly encroached upon the public land and hence, by his conduct, he has rendered himself disentitled to the assistance of this Court in terms of Section 41 (i) of Specific Relief Act.
28 Now coming to the next plea of counsel for plaintiff that act of defendant no.2 in issuing eviction notice dated 03.11.2012 is contrary to the guidelines laid down by Hon'ble Supreme Court in Jagpal Singh's case (Supra). It is significant to note in this regard that similar contentions have also been dealt with by Hon'ble Division Bench of High Court of Delhi in Samarth Shiksha Samiti Vs. Govt. of NCT of Delhi & Ors., LPA No.297/14 decided on 12.08.2014, wherein the act of demolition of unauthorized construction by local authority without any show cause notice was upheld by Hon'ble Delhi CS No.426647/17 Chhotu Ram Solanki Memorisal Education Scoiety Vs. Govt. of NCT of Delhi & Ors. Judgment dated 17.05.2019 Page 16 of 25
High Court stating that the said act cannot be considered to be in violation of any of the guidelines of Hon'ble Supreme Court in Jagpal Singh's case (Supra), as had already been held by Ld. Single judge Bench of Hon'ble Delhi High Court in WP(C) 5497/13 decided on 02.09.2013 holding that aforesaid judgment cannot be read to mean that possession of every encroacher running a dispensary or a school has to be regularized and the same has only given an option to the State to regularize possession if it so thinks fit in the facts and circumstances of the case. The said decision of Hon'ble Single Judge was upheld by Hon'ble Division Bench in LPA no.297/14 decided on 12.08.2014.
29 Now coming to the last contention of Ld. Counsel for plaintiff based on the provisions of National Capital Territory of Delhi Laws (Special Provisions) 2nd Act 2011, the following observation of Hon'ble Delhi High Court in DDA Vs. Ramrati (through her LRs), RFA No.781/2016 decided on 19/09/2018 are worth quoting:
10. This Court observes that the interpretation given by the trial court to the provision of Section 3 of the National Capital Territory of Delhi Laws (Special CS No.426647/17 Chhotu Ram Solanki Memorisal Education Scoiety Vs. Govt. of NCT of Delhi & Ors.Judgment dated 17.05.2019 Page 17 of 25
Provisions) Second Act 2011 is not the correct interpretation and this aspect has been dealt with by this Court extensively in its judgment dated 05.02.2018 titled as Baba Balbir Singh v. Delhi Development Authority, 2018 SCC OnLine Del 6968. In this judgment, this Court has examined in depth the provision of National Capital Territory of Delhi (Special Provisions) Act, 2007 alongwith the relevant notification of 2008 issued by the DDA under S. 57 of the Delhi Development Act, 1957 and it is held in the above case of Baba Balbir's Singh (Supra) that the provisions of the 2007 Act read with Gazette Notification dated 16.06.2008 issued by the appellant/defendant no. 1DDA under Section 57 of the DDA Act does not regularize land which is owned by the governmental authority after possession thereof being taken under Section 16 of the Land Acquisition Act, 1894 and such land cannot be encroached upon by illegal trespassers. It is further observed that for such illegal encroachers to claim that such encroached land forms part of a colony which is proposed to be regularized and therefore no action be taken against such encroachers under the 2007 Act or its succeeding statutes is illegal and hence such claim holds no ground. The relevant paragraphs of the judgment in the case of Baba Balbir Singh (supra) are paragraphs 11 to 14 and these paragraphs read as under: "11. In order to appreciate this argument of applicability of the 2007 Act, and alleged right of the appellant/plaintiff as per Section 3 of this Act it will be necessary to refer to Sections 2(c), 2(i), 3 and 4 of the said Act as also certain paras and definitions contained in the Gazette Notification dated 16.6.2008 issued under Section 57 of the Delhi Development Act, 1957 pertaining to regularisation of unauthorised colonies. Sections 2(c), 2(i), 3 and 4 of the 2007 Act, read as under: 2(c) "encroachment" means unauthorised occupation of Government land or public land by way of putting CS No.426647/17 Chhotu Ram Solanki Memorisal Education Scoiety Vs. Govt. of NCT of Delhi & Ors. Judgment dated 17.05.2019 Page 18 of 25
temporary, semipermanent or permanent structure for residential use or commercial use or any other use; 2(i) "unauthorised development" means use of land or use of building or construction of building or development of colonies, village abadi area and its extension, carried out in contravention of the sanctioned plans or without obtaining the sanction of plans, or in contravention of the land use as permitted under the Master Plan or Zonal Plan or layout plan, as the case may be, and includes any encroachment.
3. Enforcement to be kept in abeyance.(1) Notwithstanding anything contained in any relevant law or any rules, regulations or byelaws made thereunder, the Central Government shall before the expiry of this Act, take all possible measures to finalise norms, policy guidelines and feasible strategies to deal with the problem of encroachment or unauthorised development in the form of encroachment by slum dwellers and JhuggiJhompri clusters, hawkers and urban street vendors, unauthorised colonies, village abadi area and its extension, existing farm houses involving construction beyond permissible building limits and schools, dispensaries, religious institutions, cultural institutions, storages, warehouses and godowns used for agricultural inputs or produce (including dairy and poultry) in rural areas built on agricultural land, as mentioned below:
(a) policy for relocation and rehabilitation of slum dwellers and JhuggiJhompri clusters in accordance with provisions of the Master Plan of Delhi, 2021 to ensure development of Delhi in a sustainable, planned and humane manner;
(b) strategy for regulation of urban street vendors in consonance with the national policy for urban street vendors and hawkers as provided in the Master Plan of Delhi, 2021;
CS No.426647/17 Chhotu Ram Solanki Memorisal Education Scoiety Vs. Govt. of NCT of Delhi & Ors. Judgment dated 17.05.2019 Page 19 of 25
(c) scheme containing guidelines for regularisation of unauthorised colonies, village abadi area and its extension, as existed on the 31st day of March, 2002, and where construction took place even beyond that date and up to the 8th day of February, 2007;
(d) policy regarding existing farm houses involving construction beyond permissible building limits; and
(e) policy regarding schools, dispensaries, religious institutions, cultural institutions, storages, warehouses and godowns used for agricultural inputs or produce (including dairy and poultry) in rural areas built on agricultural land. (2) Subject to the provisions contained in subsection (1) and notwithstanding any judgment, decree or order of any court, status quo
(i) as on the 1st day of January, 2006 in respect of encroachment or unauthorised development; and
(ii) in respect of unauthorised colonies, village abadi area and its extension, which existed on the 31st day of March, 2002 and where construction took place even beyond that date and up to the 8th day of February, 2007, mentioned in subsection (1), shall be maintained. (3) All notices issued by any local authority for initiating action against encroachment or unauthorised development referred to in subsection (1), shall be deemed to have been suspended and no punitive action shall be taken till the 31st day of December, 2008. (4) Notwithstanding any other provision contained in this Act, the Central Government may, at any time before the 31st day of December, 2008, withdraw the exemption by notification in respect of encroachment or unauthorised development mentioned in sub section (2) or subsection (3), as the case may be.
(4). Provisions of this Act not to apply in certain cases. During the period of operation of this Act, no relief shall be available under the provisions of section 3 in respect of CS No.426647/17 Chhotu Ram Solanki Memorisal Education Scoiety Vs. Govt. of NCT of Delhi & Ors. Judgment dated 17.05.2019 Page 20 of 25
the following encroachment or unauthorised development, namely:
(a) encroachment on public land except in those cases which are covered under clauses (a), (b) and (c) of sub section (1) of section 3;
(b) removal of slums and JhuggiJhompri dwellers, hawkers and urban street vendors, unauthorised colonies or part thereof, village abadi area and its extension, in accordance with the relevant policies approved by the Central Government for clearance of land required for specific public projects."
12. As per the policy of 2008 an unauthorised colony has been defined in para 2(k) and the same reads as under: 2(k) "Unauthorised colony" means a colony/development comprising of contiguous area, where no permission of concerned agency has been obtained for approval of Layout Plan, and/or building plan."
13. The issue is that whether the conjoint reading of the provisions of the 2007 Act along with the definition of unauthorised colony in the 2008 policy entitles protection to a person under Section 3 of the 2007 Act although such person is not a person from whom possession was not taken in the possession proceedings under Section 16 of the Land Acquisition Act i.e possession was taken of the acquired land but again there is fresh encroachment of land of which the Government had already became the owner by taking possession under Section 16 of the Land Acquisition Act.
14. Definition of unauthorised colony as per para 2(k) of the 2008 policy only refers to a colony in which buildings are constructed without obtaining approval of layout plan or sanctioned plan. In other words a colony containing buildings already exist and the buildings are constructed without plans being sanctioned by the local authority and the colony is unauthorised as there is no CS No.426647/17 Chhotu Ram Solanki Memorisal Education Scoiety Vs. Govt. of NCT of Delhi & Ors. Judgment dated 17.05.2019 Page 21 of 25
layout plan sanctioned of the colony as required under Section 313 of the Delhi Municipal Corporation Act, 1957. Unauthorised colony's definition therefore does not include unauthorised occupation of the Government land, on which no building was constructed, and of the vacant land the Government had become the owner after taking possession of the vacant land under Section 16 of the Land Acquisition Act. This aspect becomes further clear from Section 4 of the 2007 Act as SubSection (a) of Section 4 of the 2007 Act excludes any encroachment of public land except those cases which are covered under clause (c) of SubSection (1) of Section 3 of the 2007 Act and which deals with guidelines for regularization of unauthorised colony. In my opinion, the definition of encroachment given in Section 2(c) of the 2007 Act cannot mean encroachment of public land is caused after Government has already taken possession and the Government has become the owner pursuant to possession proceedings under Section 16 of the Land Acquisition Act. The meaning of encroachment has necessarily to be confined to Government land which is acquired by an Award passed under the Land Acquisition Act but with respect to such land possession was not taken under Section 16 of the Land Acquisition Act. The encroachment which is the subject matter of Section 2(c) of the 2007 Act, when the same is read with Section 2(i) of the 2007 Act which defines unauthorised development and Section 4(a) of the 2007 Act which clearly specifies encroachment of public land is not within the scope of regularisation of an unauthorised colony except cases covered under Section 3(1)(c) of the 2007 Act, therefore I refuse to agree with the arguments urged on behalf of the appellant/plaintiff that merely because appellant/plaintiff's land is shown as Plot no. 163 in an application filed by Resident Welfare Association (RWA) of Khirki Extension for regularisation of the colony therefore, the appellant/plaintiff would have protection of Section 3 of the 2007 Act. In my opinion if this Court permits the argument as urged on behalf of the appellant/plaintiff to succeed that since CS No.426647/17 Chhotu Ram Solanki Memorisal Education Scoiety Vs. Govt. of NCT of Delhi & Ors. Judgment dated 17.05.2019 Page 22 of 25
appellant/plaintiff is an encroacher of a Government land though ownership of which had already vested with the Government, and only on the ground that the land claimed by the appellant/plaintiff is included by a private RWA in its application for regularisation of the colony and hence the appellant/plaintiff should be held to be entitled to protection under Section 3 of the 2007 Act as regards the suit land, would amount to giving license by courts to persons to go and occupy Government lands which are owned by Government and thereafter make a colony and seeks its regularisation in terms of the 2008 policy. This however is not the scope and intent of the 2008 policy or the relevant provisions of the 2007 Act, and object of which are only to protect development without a layout plan or individual building sanction plan in those areas where acquisition proceedings began and reached the stage of passing of the Award, but no possession was or could be taken by the Government under Section 16 of the Land Acquisition Act because on such lands there had already come up buildings and a colony of buildings prior to taking possession. The aforesaid position has to be clearly contradistinguished from the fact where there was no developed colony of buildings and there was only open land when possession could be and was taken by the Government in acquisition proceedings under Section 16 of the Land Acquisition Act, and that in the latter class of cases therefore once the Government takes possession under Section 16 of the Land Acquisition Act and becomes the owner, it cannot be argued by the citizens that they will do mass scale encroachment on Government lands and thereafter seek regularization of encroachment and constructed buildings allegedly on the ground of there existing the 2007 Act and the 2008 policy. I, therefore, reject the argument urged on behalf of the appellant/plaintiff that merely because the appellant/plaintiff's land is shown as Plot no. 163 in the applications for regularization filed by RWA under the 2008 policy, then only because of such reason itself, the appellant/plaintiff has/had protection of Section 3 of the 2007 Act." (Emphasis mine) CS No.426647/17 Chhotu Ram Solanki Memorisal Education Scoiety Vs. Govt. of NCT of Delhi & Ors. Judgment dated 17.05.2019 Page 23 of 25
(underlining added)
11. In view of the aforesaid discussion, it is seen that the trial court has committed a manifest error in decreeing the suit for injunction which was filed by the respondent no.1/plaintiff inasmuch as neither the respondent no.1/plaintiff was the owner of the land comprised in Khasra no. 248/2 as ownership vested with government and then with the appellant/defendant no. 1/DDA, and further taking note of the fact that respondent no.1/plaintiff did not even prove that the suit property is situated in Khasra No. 248/2. It is further observed that the respondent no.1/plaintiff failed to prove that the suit property is existing in the layout plan of the colony which is proposed to be regularized by the government. (Emphasis mine) 30 In view of the aforesaid authoritative pronouncement, in my considered opinion, the provisions of National Capital Territory of Delhi Laws (Special Provisions) 2nd Act 2011, are not applicable to the facts and circumstances of the present case and the encroachment of public land of gram sabha is not protected under the provisions of National Capital Territory of Delhi Laws (Special Provisions) 2nd Act 2011. Plaintiff is thus not entitled to the relief of permanent injunction prayed for by him in the plaint.
31 In view of above findings, it is not necessary for this Court to go into the issue as to whether provisions of Delhi Land Reforms Act, 1954 ceased to be applicable to the suit land due CS No.426647/17 Chhotu Ram Solanki Memorisal Education Scoiety Vs. Govt. of NCT of Delhi & Ors. Judgment dated 17.05.2019 Page 24 of 25
to urbanization of Village Palam w.e.f. 24.10.1994. Issue no.1 is thus decided against the plaintiff.
Issue No.2 Relief 32 In view of my finding on issue no.1 hereinabove, plaintiff is not entitled for relief of permanent injunction as prayed for by him. Accordingly, suit of plaintiff for permanent injunction is hereby dismissed. Parties to bear their own costs. Decree sheet be prepared accordingly.
33 File be consigned to record room as per rules. Announced in the open court on this 17th May, 2019 This judgment consists of 25 signed pages (Arun Kumar Garg) ACJcumCCJcumARC(SW) Dwarka Courts, New Delhi CS No.426647/17 Chhotu Ram Solanki Memorisal Education Scoiety Vs. Govt. of NCT of Delhi & Ors. Judgment dated 17.05.2019 Page 25 of 25