Delhi District Court
The vs Unknown on 15 February, 2021
IN THE COURT OF SH. KISHOR KUMAR, JSCC-CUM-ASCJ-
CUM-GUARDIAN JUDGE (WEST): DELHI
Suit No. 552/18
Sh. Jitender Kumar
S/o Sh. Hiraman Prasad
R/o 159, Block F,
Rajouri Garden
New Delhi.
...........Plaintif
Versus
South Delhi Municipal Corporation
(S.D.M.C)
Through its Commissioner
Central Licensing and Enforcement Cell,
11th Floor, Dr. S. P. Mukharjee Civic Centre,
J.L. Nehru Marg, New Delhi.
.........Defendant
Date of filing of the suit : 05.05.2018
Date of reserving judgment : 15.02.2021
Date of pronouncement of judgment : 15.02.2021
JUDGMENT
1. The plaintiff has filed the present suit for permanent and mandatory injunction against the defendant contending inter-alia that he Suit No. 552/18 Page no.1/7 is running a tea shop at 159, Block-F, Rajouri Garden, New Delhi (hereinafter referred as suit property)since 1993. Plaintiff has further stated that an order dated 11.02.2011 has been passed by the Hon'ble Presiding officer, whereby the defendant has been directed to re- consider the allotment of tehbazari to the plaintiff in terms of directions of the Hon'ble Supreme Court, the plaintiff has been regularly paying the licence fee against receipt and he is also having an electricity connection on the suit property. The officials of defendant visited the suit property on 24.04.2018 and again on 03.05.2018 and threatened the plaintiff that they will forcibly dispossessing the plaintiff from the suit property. Hence the present suit for injunction for restraining the defendant from dispossessing or interfering in the peaceful possession of the plaintiff over the suit property.
2. Defendant has filed its written statement submitting that plaintiff is an encroacher on Government land. Plaintiff is running his tea stall illegally. It is further submitted by the defendant that the plaintiff applied for registration for allotment of tehbazari site on 20.09.2007 vide receipt no. 944028 dated 20.09.2007. However, his request was declined as plaintiff is encroacher over the public land. No licence of tehbazari has been issued by the SDMC to the plaintiff. The defendant issued challans under Section 357/397/398 of DMC Act against the plaintiff as he has been running his tea stall on Government land without licence as it stood revealed on inspection of the site by the official on 06.07.2018. The Hon'ble Presiding Officer passed order dated 11.02.2011 on the application no. 11093 of the plaintiff and passed the following order"-
"On the basis of documents shown applicant is neither category 1 eligible squatter having failed to show documents of squatting Suit No. 552/18 Page no.2/7 between 1970 and 1982 and that he was found squatting at the site during general survey conducted by MCD in December 1982 nor is he category III eligible squatter having failed to show documents of continuous squatting w.e.f 1983 to 8th July 1991 which was the cut-off date.
So, he is not entitle to preferential allotment of tehbazari site as per Sodan Singh guidelines.
New Scheme of MCD for Squatters/Hawkers-2007 also give priority for allotment to tehbazari site to old eligible squatters of Gainda Ram Scheme/Chopra Committee. Squatters like the applicant can be considered under General urban Poor Category of the said Scheme on availability of sites after preferred categories have been fully and meaningfully accommodated.
In view of the above, the suit is liable to be dismissed".
Rest of the case of the plaintiff has been denied being wrong.
3. On the basis of pleadings of the parties, following issues were framed for trial on 27.11.2018:-
1. Whether the suit is barred under Section 477/478 of DMC Act for want of statutory notice?OPD
2. Whether the suit is without any cause of action and liable to be dismissed under Order 7 Rule 11 CPC?OPD
3. Whether the plaintif is entitled to a decree of permanent injunction, as prayed for?OPP
4. Whether the plaintif is entitled to a decree of mandatory injunction, as prayed for ?OPP
5. Relief.
4. In order to prove his case, the plaintiff has examined himself as Suit No. 552/18 Page no.3/7 PW-1 by way of his affidavit in evidence Ex. PW1/A. He has relied on the following documents i.e. Ex. PW1/1 to Ex. PW1/6. Copy of order of MCD dated 11.02.2011 as Ex. PW1/1, copy of electricity bill as Ex. PW1/2, copy of voter I card as Ex. PW1/3, copy of Adhar Card as Ex. PW1/4, copy of Ration Card as Ex. PW1/5, copies of tax receipts as Ex. PW1/6 (colly.) and Mark A. On the other hand, the defendant has not led any evidence.
5. I have heard ld. Counsel for the plaintiff, ld. Counsel for the defendant and have carefully gone through the record. My issue-wise findings are as follows:-
ISSUE NO. 1 & 2"1. Whether the suit is barred under Section 477/478 of DMC Act for want of statutory notice?OPD
2. Whether the suit is without any cause of action and liable to be dismissed under Order 7 Rule 11 CPC?OPD".
6. Both these issues are taken up together as they are inter- connected. Onus of proving both these issues was on the defendant. Defendant has not led any evidence in support of their averment as contained in the written statement. Still, issue no.1 being a legal issue can be decided without any oral evidence. It has been contended by the defendant in the written statement that suit of the plaintif is not maintainable as no notice has been given to the defendant as required u/s 477/478 of DMC Act prior to filing the present suit. I have gone through both these provisions. There is proviso that where a plaintif seeks relief of injunction being Suit No. 552/18 Page no.4/7 urgent in nature, there is no need to serve advance notice of two months upon the defendant prior to filing the lis. The plaintif has filed the present suit for permanent and mandatory injunction along with an application under Order 39 Rule 1 & 2 CPC. The nature of the suit was urgent. Hence, there was no requirement on the part of the plaintif to serve advance notice u/s 477/478 of DMC Act, upon the defendant of his intention to file the suit.
The cause of action is bundle of facts, which are required to be proved as per the Evidence Act. The plaintif filed the present suit for permanent and mandatory injunction on the ground of their being an imminent threat of his dispossession from the suit property at the hands of the defendant. Therefore, it was not right to state by the defendant that plaintif did not have the cause of action to file the present suit.
Both these issues are accordingly decided against the defendant and in favour of the plaintif.
ISSUE NO. 3 & 4.
"3. Whether the plaintif is entitled to a decree of permanent injunction, as prayed for?OPP
4. Whether the plaintiff is entitled to a decree of mandatory injunction, as prayed for ?OPP".
7. Both these issues are taken up together as they are inter- connected. Onus of proving both these issues was on the plaintif.
Suit No. 552/18 Page no.5/7In his evidence Ex.PW1/A, the plaintif has re-affirmed and reiterated the facts so disclosed by him in the plaint on oath. Plaintif has been cross-examined by ld. Counsel for the defendant where he has deposed that it is correct that his voter identity card was prepared in 2016. Same is his answer to his Aadhar Card and his Ration Card. Plaintif further deposed in his cross-examination that he did not possess any document to show that he was residing in the suit property from 1993 to 2015. He further deposed that he was not having any licence of tehbazari issued by MCD. He further deposed that he did not have any document issued by MCD to establish his possession over the suit property. He has shown ignorance if tehbazari has been alloted to him since after making of application in the year 2007. He could not produce any electricity bill prior to October, 2016. He has denied the suggestion that all the receipt filed by him in this case pertain to fine imposed by MCD. He also could not produce any document with respect to the licence fee. Remaining cross-examination is in denial suggestion form. The plaintif has based his case on some orders passed by the Presiding Officer i.e. Ex. PW1/1. I have gone through the order of Presiding officer dated 11.02.2011 on the application of the plaintif bearing no. 11093. Ld. Presiding officer has concluded to the efect that "squatters like the applicant can be considered under general urban poor category of the scheme i.e. new scheme of MCD for squatters/hawkers-2007, on availability of sites after preferred categories have been fully and meaningfully Suit No. 552/18 Page no.6/7 accommodated. The plaintif has not proved on record that defendant are having the sites after preferred categories have been accommodated. This order dated 11.02.2011 passed by the Ld. Presiding officer Ex. PW1/1 does not in any manner confer any right, title or interest over the plaintif to remain in possession of the suit property. The plaintif has not filed any document to show that he is in possession of the suit property since 1993. The receipts Ex. PW1/6(colly. 11 pages) in no manner prove that the plaintif has been paying the licence fee and/or he was ever allotted any tehbazari rights by the defendant in respect of the suit property. The plaintif is an encroacher over the suit property. Both these issues are accordingly decided against the plaintif and in favour of the defendant.
RELIEF
8. In view of my discussions on issue no. 3 & 4 suit of the plaintif is hereby dismissed with no order as to cost.
9. Decree sheet be prepared accordingly.
10.File be consigned to Record Room.
Announced in the open Court today the 15th February, 2021.
(KISHOR KUMAR) JSCC-cum-ASCJ-cum Guardian Judge (West), Delhi 15.02.2021 Suit No. 552/18 Page no.7/7