Sham Sunder vs Municipal Corporation Of Delhi ...
1991 Latest Caselaw 474 Del

JUDGMENT

Santosh Daggal, J.

(1) This revision petition and revision petition No. 692/89 arise out of the order passed by Shri V.S. Aggarwal, Additional District Judge, Delhi on 20th January, 1989, whereby the appeals filed by the petitioner Sham Sunder and two others separately were disposed of by a common order.

(2) This order shall confine only to Sham Sunder who has come up in revision petition. He had pleaded in the suit that he was originally an allottee of an area of 150 sq. yds,, from Municipal Corporation of Delhi since the year 1965, but claimed to be in possession at the time of filing of the suit of an area measuring 333 sq. yds. While the trial Court has dismissed in toto the petitioner's application for temporary injunction, but in appeal the learned Additional District Judge thought it to be a fit case to protect the possession of the petitioner during the pendency of the suit in respect of 150 sq. yds, of land which was originally allotted to him by the Municipal Corporation in 1965, being of the view that so far land over and above 150 sq. yds. was concerned, there was no justification for the plaintiff in the suit, and the appellant before him, (petitioner Sham Sunder herein), seeking an injunction order against the Municipal Corporation or Delhi Development Authority (for short 'DDA') restraining his dispossession.

(3) It is further observed in this order that it is the case of the respondent that this municipal land has been placed at the disposal of Dda by means of notification issued by the Central Government in 1982 for development purposes and it is by virtue of this notification that the Dda proposed to take possession of the land from the petitioner. The prayer for stay in respect to land in excess of 150 sq. yds. was accordingly disallowed for the reason that the petitioner was a trespasser in respect to this land, and did not deserve any protection of the Court.

(4) It appears that a dispute was raised before the Court by Dda that the Municipal Corporation had no authority to make any allotment even of 150 sq. yds. of land to the petitioner and others similarly placed. The Court left this question open to be determined during trial but in view of the admitted position of the Corporation in the written statement that the land measuring 150 sq. yds. was allotted in 1965 to the petitioner, the prayer for stay during pendency of the suit, as already observed, was granted.

(5) The petitioner in this revision petition contends that the Dda has no authority to proceed against him to recover possession even in respect to land which is in his occupation in excess of allotted area of 150 sq. yds. This plea has been rejected by the Courts below. I also do not fine any merit at this stage in this plea because under Section 22(1) of the Delhi Development Authority Act, 1957, the Central Government has power to place land in Delhi at the disposal of Dda by issuing a notification in the Official Gazette for the purpose of development in accordance with the provisions of the said Act. The case of the respondent is that the land in occupation of the petitioner and others had been placed at the disposal of the Dda by means of a notification issued in 1982. It will be for the respondents to prove that there was a valid notification within the meaning of Section 22(1) or any other provision of law, which may be applicable, but prima facile the Dda canon the strength of this notification proceed against the trespassers in respect to land placed at their disposal. The petitioner, therefore, has no case at this stage, in so far as the land over and above 150 sq. yds. is concerned. The revision petition to that extent is liable to be dismissed and is dismissed.

(6) Mr. Nayyar argued that the appellate Court while partly allowing the appeal and dismissing the same in respect to the excess area of land, has observed that nothing would restrain the respondents from dispossessing the appellant (.petitioner herein) if the allotment as such is cancelled in accordance with law. Mr. Nayyar urges that in the first instance it is only the Corporation who had allotted the land who alone can have the authority to proceed with the cancellation and that the Dda would have no authority particularly when in the earlier part of the order, the Court has held that it was the Municipal Corporation who had allotted the land. This question does not arise at this stage, the Court has only observed that it shall be open to the respondents to take action by cancelling the allotment in accordance with law, which means mat whichever of the two respondents has authority of law to pass an order of cancellation of the allotment of the petitioner in respect to 150 sq. yds. of land, and as and when that authority proceeds, which they are bound to proceed in accordance with law, as per this order, then in case there is any cause of action arising in favor of the petitioner, he shall have a right at the time to raise whatever objections are open to him under law.

(7) It is further contended by Counsel for the petitioner that the trial Court while disposing of the appeal had directed that the Teh bazari' be paid in respect to 150 sq, yds. of land to DDA. Mr. Nayyar states that there is no provision in the DDA. Act authorising Dda to receive Teh bazari'. He further contends that the Teh bazari' is payable in terms of the allotment to Municipal Corporation and the petitioner has been paying the same to the Municipal Corporation and shall continue to do so. Neither of the Counsel are in a position to produce the notification issued in 1962 in favor of DDA. the question will arise as to whether after the issuance of notification, the Municipal Corporation retains any right to receive 'Teh bazari ?' the question also requires determination whether Dda has any authority to receive Teh bazari ?

(8) In these circumstances it is ordered that the petitioner during the pendency of the suit deposit the amount of 'Teh bazari' payable by him in respect to 150 sq. yds. of land, in the trial Court and it shall be determined by the Court as to who is entitled to receive 'Teh bazari', and the order shall be passed for disbursement of the 'Teh bazart' accordingly, at the time of disposal of the suit.

(9) With these directions and observations, the revision petition is disposed of.