Delhi District Court
Khalid Rizvi & Ors vs Delhi Development Authority (Dda) on 30 June, 2015
IN THE COURT OF SH. SUMIT DASS,
SENIOR CIVIL JUDGE-CUM-RENT CONTROLLER (NORTH),
ROHINI COURTS, DELHI.
Suit No. : 195/14
In the matter of :
Khalid Rizvi & Ors.
...Plaintiffs
Versus
Delhi Development Authority (DDA)
...Defendant
Order :
1.Vide this order, I shall dispose of an application under Order XXXIX rule 1 and 2 r/w section 151 CPC which has been preferred by the plaintiffs seeking the relief that the defendant should not dispossess the plaintiffs or construct or create any sort of third party interest in the suit property[property owned by them individually].
2. The case of the plaintiff No. 1, 2 and 4 is that they had purchased the plots in Khasra No. 18/6, Kailash Vihar, Pansali whereas plaintiff No.3's plot was in Khasra No. 18/12/1 in same colony. Defendant had acquired some part of land of village Pansali in the year 2002-03, but in the rest part of Village Pansali general public was residing who had constructed their houses without any hindrance and objections from anyone. The Suit No.195/14 Page 1 of 12 details of acquisition and the particulars of their previous chain were stated in para No. 3, 5, 7 and 9 of the plaint. I am skipping the details right now and the impact/relevance of said documents viz-a-viz the defendant shall be dealt in the discussion para. It is further stated that the plaintiffs were living at the suit property/individual portion of land peacefully. It is further stated that plaintiffs had not received any sort of notice from the defendant's side with regard to demolition of their property. Rather even at the time of construction of the plots, no official of the defendant ever came to obstruct them. On 15.09.14 some persons from DDA alongwith police came to the houses of plaintiffs and warned the plaintiffs family to vacate the respective house immediately and thereafter, started forcefully removing the household goods. Their houses were also demolished. Plaintiffs had made complaint to the higher authorities as well as police but to no avail. Hence, plaintiffs were compelled to file the instant suit.
3. WS was filed by the defendant-DDA. Preliminary objections were taken that plaintiffs had not served any notice u/s 53 (B) of the Delhi Development Act, 1957 before filing of the suit. Further the land in question was in kh. no. 18/6(4-14) same was notified u/s 4, 6, 17 (i), vide notification no. F10(29)/96/L&B/LA dated 27.10.1999 and 03.04.2000 respectively and physical possession of the land was taken by Land Acquisition Collector on 12.05.2000. Further land has been transfered to the Suit No.195/14 Page 2 of 12 Engineering Wing of DDA for development. DDA has already constructed the boundary wall in and around the land. It was further contended that the land in question of plaintiff No. 3 also falls in Khasra No. 18/6 and not 18/12/A. Hence, plaintiffs have no right, title or interest in the land in question. It was also claimed that the land in question was an acquired one and accordingly, this Court had no jurisdiction to try the present suit being barred by Section 9 of the Civil Procedure Code, 1908. Reliance was also placed on the judgment passed in Suraj Lamps Industries P Ltd. Vs. State of Haryana (2009) 7 SCC 363, a leading judgement wherein it has been held that the GPA/Sale Agreement and Will i.e. unregistered documents are not the legal mode of transfer of land/affecting rights in relation to immovable property. On merits all the plaint averments were denied in toto. It was contended that the DDA had the right to remove unauthorised encroachments. Dismissal of the suit was sought for.
4. Replication was filed. The plaintiffs had denied the contrary averments made in the written statement and reiterated and re- affirmed the plaint averments as true and correct.
5. Heard either side.
6. It is pertinent to note that on 01.10.14 I had passed the following order,[I am quoting the same because the plaintiff has complained that the defendant had caused disobedience of the said order - preferred an application u/o 39 Rule 2A CPC]:
Suit No.195/14 Page 3 of 12"L d. Counsel for defendant submits that they are only making a boundary wall and there is no construction proposed as on now in respect of the land.
DDA can continue to do so, however, in case if any injunction order is passed in favour of the plaintiffs, DDA would be directed to demolish the same without any compensation. This is specifically observed.
Ld. counsel for defendant submits that they fairly concede to the said proposition. Copy dasti."
7. Plaintiffs had also filed another application u/o 39 rule 2 A r/w section 151 CPC, which was duly replied by the defendant side. I shall also dispose off the said application along with the interim application.
8. The aspect of governing the discretion at the stage of disposal of interlocutory application is well-settled and it depends purely of there being (i) a prima facie case, (ii) balance of convenience is in favour of the plaintiff and (iii) on the facet of irreparable loss and injury. These principles needs to be taken into consideration.
9. Plaintiffs had purchased the suit property/their individual portions through unregistered documents. Plaintiff No. 1 Khalid Rizwi claims to be the owner of a plot bearing No. 1B measuring 25 sq. yards. He traces his chain/claims to have purchased the property from Ganesh Kumar Shukla on 21.02.2013 through notarised property documents i.e. GPA, Sell and purchase agreement, Affidavit, Receipt and Will. Said Ganesh Shukla had purchased the Suit No.195/14 Page 4 of 12 property from Manjeet Kaur who also had purchased the property from Ram Kumar Verma through similar unregistered documents on 01.01.2013 and 15.09.2008 respectively.[I am going backwards and stating the dates of purchases]. Now Ram Kumar had purchased the property from Rajinder Prasad and later on the chain progressess from Devender Singh and thereafter, originally from Suresh. The dates of purchase are 15.09.2009, 14.10.1999 and 05.07.1994. All the documents are unregistered except the General Power of Attorney executed by Devender Singh in favour of Rajinder Prasad.
10. Now coming to the documents of the plaintiff No. 2 who claims to be the owner of plot measuring 40 sq. yards. He had purchased the property from Geeta on 21.06.2013 through similar documents i.e. unregistered/notarised documents. Geeta had also purchased the property from Suresh on 14.02.1996 through GPA, Sell and purchase agreement, Affidavit, Receipt and Will. Said Suresh had purchased the property from Devender Singh. Again the position is same. None of the documents were registered.
11. Plaintiff No. 3 claims to be owner of the property having purchased the same from Ram Jiwan Patel on 12.04.2013. Ram Jiwan Patel had purchased from Manju Devi, Manju Devi in turn had purchased from Banke Lal. Banke Lal had purchased from Vatika. All the documents are notarised i.e. GPA, Sell and purchase agreement, affidavit and receipt. Plaintiff No. 3 also claims that 10 sq. yards additionaly to the earlier 40 sq. yards was purchased from Pinki W/o Sunil Kumar on 08.04.2013. The case of the plaintiff No. 4 Suit No.195/14 Page 5 of 12 is also based on similar documents having purchased the same from Geeta W/o Vijender on 24.06.2013.
12. Now evaluating all the documents it is apparent that all the transactions are through unregistered agreements. Except a solitary General Power of Attorney executed by Devender Singh in favour of Rajinder Prasad dt. 14.10.99 all the documents suffer from the same vice of being unregistered ones. Even the said document does not specify the property with any precise site plan and deals/empowers with regard to 125 sq. yards whereas plaintiff No.1's case is only for 25 sq. yards. In the absence of any sale deed or even registered GPA/agreement to sell etc., to contend that the ownership rights in the property vested with the plaintiffs, said plea is without any substance. Even for the sake of arguments, I take that the plaintiffs could not get the sale deed registered for whatever reasons it may be, the documents relied by the plaintiffs i.e. simplicitor notarised documents are bereft of any legal sanctity - does not even after any solace or comfort that indeed such a transaction actually took place at the relevant time/as stated in the documents. To put it otherwise, documents of sale/purchase of immovable property have to be routed through the Sub Registrar/registered only.
13. The entire bunch of documents of all the plaitniffs comprise of unregistered documents/a set of documents wherein they had not opted for even paying the consideration by any instrument/through any banking channel. There is no legal sanctity attached to the said transaction(s). The judgement of Suraj Lamps Suit No.195/14 Page 6 of 12 Industries P Ltd. Vs. State of Haryana (2009) 7 SCC 363 is applicable in the given set of facts and circumstances. Such documents cannot be taken as one which vest title unto the plaintiffs in respect of the suit property. It also needs no reiteration that w.e.f. 24.09.2001 even for the purposes of availing the plea of part performance u/s 53A of the Transfer of Property Act, the agreement has to be registered one. That being the situation plaintiff is without any legal right in the suit property.
14. Per contra DDA has placed on record the copy of Award in respect of the property falling in Khasra No. 18/6(record has been placed in connected case of Sanjee Begum). The actual physical possession of the property was also taken over. There has been also a demolition exercise conducted by DDA in respect of the suit property. The semblance of possession has also gone. Plaintiffs, therefore, are also stripped off the possession also.
15. Ld. counsel for the defendant has relied on a judgement titled as K.N. Aswathnarayana Setty Vs. State of Karnataka AIR 2014 SC 279. The same is squarely applicable in the given set of facts and circumstances. Documents of transfer also does not bind the State/the LAC.
" 9. By operation of law, as this Court quashed the de- notification of acquisition proceedings, the proceedings stood revived. In V. Chandersekaran & Anr. v. The Administrative Officer & Ors., JT 2012 (9) SC 260, this Court considered the right of purchaser of land subsequent to the issuance of Section 4 notification and held that any one who deals with the land subsequent to a Section 4 notification being issued, does Suit No.195/14 Page 7 of 12 so, at his own peril. Section 4 notification gives a notice to the public at large that the land in respect to which it has been issued, needed for a public purpose, and it further points out that there will be "a n impediment to any one to encumber the land acquired thereunder." The alienation thereafter does not bind the State or the beneficiary under the acquisition. In fact, purchase of land after publication of a Section 4 notification in relation to such land, is void against the State and at the most, the purchaser may be a person interested in compensation, since he steps into the shoes of the erstwhile owner and may therefore, merely claim compensation. Thus the purchaser cannot challenge the acquisition proceedings. While deciding the said cane this Court placed reliance on a very large number of its earlier judgment including Leela Ram vs. Union of India & Ors., AIR 1975 SC 2112; Smt. Sneh Prabha et. v. State of Uttar Pradesh & Anr., AIR 1996 SC 540; Meera Sahni v. Lieutenant Governor of Delhi & Ors. (2008) 9 SCC 177:
(AIR 2009 SC (Supp) 760); and Tika Ram & Ors. v. State of UP & Ors. (2009) 10 SCC 689: (AIR 2010 SC (Supp) 805).
10. The law on the issue can be summarized to the effect that a person who purchases land subsequent to the issuance of a Section 4 notification with respect to it, is not competent to challenge the validity of the acquisition proceedings on my ground whatsoever, for the reason that the sale deed executed in his favour does not confer upon him, any title and at the most he can claim compensation on the basis of his vendor's title.
11. In order to meet the menace of sale of land after initiation of acquisition proceedings, various States enacted the Acts and making such transfer as punishable, e.g., The Delhi Lands (Restrictions on Transfers) Act, 1972 made the sales permissible only after grant of permission for transfer by the authority prescribed therein. In absence of such permission if the sale is made in contravention of the statutory provisions it is a punishable offence with imprisonment for a term which may extend to 3 years or with fine or with both.Suit No.195/14 Page 8 of 12
16. There is no prima-facie case in favour of the plaintiffs at all. There is no need to discuss the other two ingredients i.e. the balance of convenience and irreparable loss and injury in the absence of prima facie case. Application u/o 39 rule 1 & 2 r/w section 151 CPC stands dismissed.
17. Coming to the application u/o 39 rule 2 A CPC. It is claimed in that application that on 01.10.2014 an interim order was passed by this Court. Now the defendant has in violation of the orders of this Court installed a board on the suit property, which depicts that the suit property belongs to the defendant, same is without the sanction /permission of this Court and should be ordered to be removed immediately.
18. Reply to this application has been filed by the DDA. In reply it is stated that there is no construction over the suit land. DDA had only installed a board on the suit land with a view to safeguard the land owned by DDA and there is no breach of any interim order in as much as there was no restrain order passed/direction given.
19. Order 39 rule 2 A CPC speaks of breach/disobedience of injunction order. Now the relevant order/part of the order has been extracted. In my opinion, there is no direction given in the said order, the contempt of which/breach was committed by the defendant's side. The said order mandated that in the eventuality in case if injunction order is passed in favour of the plaintiff, DDA would demolish the boundary wall. The interim application has been dismissed. No right therefore, accrues to the plaintiffs qua the same Suit No.195/14 Page 9 of 12 or in respect of the boundary wall raised. As a logical consequence once the land has been bounded/a boundary wall was constructed no prejudice is caused to plaintiffs if DDA inform the public at large particularly the gullible persons/innocent persons that the land in question belongs to DDA land and they should not enter into any sort of transaction or to tress pass over the same. At this juncture, DDA certainly has a better right than the plaintiff and as a consequence, also having the right to install the board over the land in question. Even otherwise also there is no breach of the order - this application per se is not maintainable. Application u/o 39 rule 2 A CPC is also dismissed.
20. Pleadings of the parties are complete. Admission/ denial of documents not pressed for. Parties are not desirous to avail/ opt for any ADR u/s 89 CPC. From the pleadings of the parties following issues are framed:
1. Whether the plaintiff is entitled to a relief of mandatory injunction, as prayed for? OPP
2. Whether the plaintiff is entitled to a relief of permanent injunction, as prayed for? OPP
3. Whether the suit of the plaintiff is without any cause of action? OPD
4. Whether the suit of plaintiff is barred by the reasons stated in para no.1 of preliminary objections of the WS filed by the DDA? OPD
5. Relief.Suit No.195/14 Page 10 of 12
No other issue arises or is pressed for. Put up for PE on 12.10.2014. Advance copy of the affidavit be supplied to the opposite party 10 days prior to the next date of hearing. List of witnesses be filed within 15 days from today.
ANNOUNCED IN OPEN COURT (SUMIT DASS)
ON 30.06.2015 SCJ-CUM-RC (NORTH)
ROHINI, DELHI
Suit No.195/14 Page 11 of 12
Suit No. : 195/14
30.06.2015
Present : None.
Vide my separate order, application u/o 39 rule 1 & 2 r/w section 151 CPC and application u/o 39 rule 2 A CPC stands dismissed.
Issues are settled.
Put up for PE on 12.10.2014. Advance copy of the affidavit be supplied to the opposite party 10 days prior to the next date of hearing. List of witnesses be filed within 15 days from today.
(SUMIT DASS) SCJ-CUM-RC (NORTH) ROHINI, DELHI Suit No.195/14 Page 12 of 12