S.C.Shukla (Dr.) & Ors. vs Delhi Development Authority & ...
1998 Latest Caselaw 306 Del

ORDER

Lokeshwar Prasad, J.

1. This order shall dispose of two applications (IA 4013/95 and IA 7894/95) - one filed by the plaintiffs under Order XXXIX Rule 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the CPC') and the other one filed on behalf of defendant No.2 under Order XXXIX Rule 4 read with Section 151 CPC for the discharge/variation/setting aside the order dated the 9th May, 1995, passed in IA 4013/95.

2. The facts relevant for the disposal of the above mentioned two applications, briefly stated are, that the plaintiffs have filed a suit for permanent injunction with the prayer that a decree for permanent injunction restraining the defendants from using any part of the land, measuring 4000 Sq. Mtrs ( as shown in the plan annexed with the plaint). for any other purpose except a children's park, be passed in favour of the plaintiffs and against the defendants. It is further prayed by the plaintiffs that defendant No.2 be restrained by a decree of permanent injunction from digging or making any construction on the above said plot of land, situated in Ashok Vihar, Phase IV, SFS Flats, Delhi. As per the case of the plaintiffs, the above said plot measuring 0.66 hect.,was ear- marked in the land out plan for a Primary School but all along the above said piece of land has been used as a park . It is averred that in the year 1989 the above said plot of land was formally approved as a children's park instead of a site for Primary School by the then Lt. Governor of Delhi Shri Romesh Bhandari. It is further stated by the plaintiffs that sometime in the year 1990/91 a part of the above said plot was sought to be allotted to Mohan Memorial Education Society for running a Nursery School and plaintiff No.1 filed a suit (Suit No. 1891/91) in the Court of Senior. Sub- Judge, Delhi against the Delhi Development Authority seeking the relief of permanent injunction from changing the nature of the park. It is alleged that in the above said proceedings ( Suit No. 1891/91) Mohan Memorial Education Society made an application under Order 1 Rule 10 CPC for its impleadment as a party. It is stated that the Delhi Development Authority had filed a written statement in the Court of Sub Judge Ist Class wherein it was stated that out of 0.66 hector (6600 Sq Mtr) an area of 4000 Sq. Mtrs in the lay out plan, adjacent to the Nursery School site, had been retained as a children's park. It is further stated that a compromise was effected between the plaintiff and the Mohan Memorial Education Society and it was inter-alia agreed that the remaining site would be used and would be developed as a children's park by the Delhi Development Authority. The main contention of the plaintiffs in the present proceedings is that the above said plot/park, measuring 4000 Sq Mtrs. has been admittedly year marked for a children's park and that the same cannot be used for DAV Public School or for any other purpose. It is stated that the allotment of land, if at all to defendant No.2 is illegal and against the bye laws and in case the allotment is allowed to stand,the plaintiffs would suffer irreparable loss and injury.

3. Alongwith the plaint, the plaintiffs have also filed an application (IA No.4013/95) under Order XXXIX Rule 1 and 2 read with Section 151 CPC for an ad interim ex- parte order. The above said application came up for hearing before the learned predecessor of this Court on 9.5.1995 and the learned predecessor of this Court on the above said application of the plaintiffs passed the following orders :

IA 4013/95

Heard. Mr. Makhija, counsel for the plaintiff. It is stated that initially, plot of 6000 sq. mtrs was earmarked for primary school. That in Suit No. 1891/91, filed by plaintiff No.17, the defendant had agreed that a plot of 2000 sq. mtrs would be set apart from 6600 sq. mtrs and the same would be used for primary school purpose. On the strength of this fact, plaintiff No.17 withdrew the earlier suit and now the defendant wants 4000 sq. mtrs plot of land to be used for school rather than for the purpose of park. It is stated that at the present, 4000 sq. mtrs, is being used for park for the children of the society.

Looking to the facts and circumstances, it becomes necessary not to permit the user of 4000 sq. mtrs plot of land being used for park to any other purpose by an ex parte injunction.

Defendants restrained in terms of para 18(a) and (b) till the next date Plaintiff to comply with provisions of Order 39 Rule 3 CPC within 3 weeks from today.

Dasti.

Notice to the defendants, on filing P.F.and Regd. AD covers by the plaintiff, for 1.9.1995.

4. Defendant No.2 on 28th July, 1995 filed an application (IA 7894/95) under Order XXXIX Rule 4 CPC for the discharge/variation/setting aside the above said order dated the 9th May, 1995 passed in I.A. 4013/95.

5. In so far as the above mentioned two applications- (one filed by the plaintiffs under Order XXXIX Rule 1 and 2 read with Section 151 CPC bearing No. 4013/95 and the other one filed on behalf of defendant No.2 under Order XXXIX Rule 4 CPC bearing No. 7894/95)- are concerned I have heard the learned counsel for the parties at length and have also carefully gone through the documents/material on record. As per settled law, culled out from various decisions, relief under Order XXXIX Rule 1 and 2 can be given to an applicant provided the applicant is in a position to satisfy the Court that the applicant has a 'prima facie case'; that the 'balance of convenince' is in his favour and that 'irreparable loss/injury' would be caused to him if the relief is not granted to him. The phrases 'prima facie case'; balance of convenienceO' and 'irreparable loss' are not rhetoric phrases for incantation, but words of width and elasticity to meet myriad situations, presented by men's ingenuity in given facts and circumstances, hedged with sound exercise of judicial discretion to meet the end of justice. The burden is always on the applicant/plaintiff to satisfy the Court that there is a 'prima facie case' in his favour which needs adjudication at the trial. The existence of prima facie right and infraction of the enjoyment of his property or the right, is a condition for the grant of temporary injunction. However, satisfaction that there is a 'prima facie case' by itself is not a sufficient ground to grant injunction. The Court further has to satisfy itself that non-interference by the Court would result in irreparable injury to the party seeking relief and that there is no other remedy available to the party except the one to grant injunction and that the applicant needs protection from the consequences of apprehend injury. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury but means only that the injury must be a material one, namely, one that cannot be adequately compensated by way of damages. While granting relief under the above provisions the Court has also to see that the 'balance of convenience' must be in favour of granting injunction. In other words, the Court, while granting or refusing to grant injunction, is expected to exercise sound judicial discretion to find out the amount of substantial mischief or injury which is likely to be caused to the parties if the injunction is refused and compare it with that it is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit the subject matter should be maintained in status quo, an injunction under the above provisions would be granted by the Court. Their lordships of the Supreme Court in case Dalpat Kumar Vs. Prahlad Singh reported as have held that before granting injunction the Court would be circumspect and look to the conduct of the party,the probably injuries to either party and whether the plaintiff could be adequately compensated if the injunction is refused.

6. The light of the above settled legal position it is to be seen as to whether in the present case the plaintiffs have a 'prima facie case' in their favour; whether the 'balance of convenience' is also in their favour and whether 'irreparable loss/injury' would be caused to the plaintiffs if the relief sought for is not granted to them.

7. As per the case of the plaintiffs the plot in question is a 'children's park' and therefore the same cannot be used or cannot be allowed to be used by any one for purposes other than children's park. Whereas the DDA in its written statement filed on 15th July, 1996 has categorically stated that the land use of the plot in question is for a primary school and in accordance with the land use of the plot, the same has been validly allotted to defendant No.2 and the residents(plaintiffs) have no right to claim the above said plot of land contrary to the land used plan. The defendant Delhi Development Authority in its written statement has also taken certain preliminary objections with regard to the aintainability of the suit filed by the plaintiffs. Defendant No.2 the DAV College Trust Management Society in its written statement dated the 6th November, 1995 while taking preliminary objections with regard to the maintainability of the suit, on merits, has stated that the plot in question, measuring over 6000 Sq. Mtrs was allotted to it for the purpose of a school by the defendant Delhi Development Authority and defendant No.2 is in actual physical possession of the above said plot of land. On the basis of material on record, more particularly the contents of the written statement filed on behalf of defendant No.1 DDA, it is apparent that the land use of the plot in question as per the Land use plan of the area is not for children's park but is for a Primary School and in accordance with land use of the plot in question the respondent DDA has allotted the land in question to defendant No.2 for a premium of Rs.34.36 lakhs. In my opinion, on the basis of material on record, prima facie, at this stage there appears to be no substance in the contention of the plaintiffs that the above said plot is a children's park because as per the averments of the plaintiffs themselves the plot in question was earmarked in the lay out plan for a 'Primary School'( para 5 of the plaint). As per the statutory provisions, contained in the Delhi Development Act, 1957 and the Rules framed thereunder the land use of a plot of land can be changed only by following the procedures prescribed by the statute. The plaintiffs neither in the plaint nor in the application have anywhere pleaded as to how the land use of the plot in question was changed from primary school to children's park. In para 6 of the plaint it is stated that in 1989 the plot of land was formally approved as a children's park by the then Lt. Governor of Delhi Shri Romesh Bhandari. The above plea, taken by the plaintiffs, is not supported by the material on record. On record in the documents filed on behalf of plaintiffs there is a letter dated the 19th September, 1991, addressed by Shri Romesh Bhandari to Shri Markandey Singh, the then Lt. Governor, Delhi. In the above said letter Shri Romesh Bhandari has requested the then Lt. Governor/Chairman DDA that the plot of land in question be permitted to be continued to be used as a children's park for the children of the residents of the locality. In case Shri Romesh Bhandari had formally approved the site as a children's park instead of a primary school,as alleged, in that event where was the necessity for Shri Romesh Bhandari to make a request to the then Lt. Governor for permitting the user of the plot in question as children's park for the children of the residents of the locality. Even otherwise it was not within the competence of Shri Romesh Bhandari the then Lt. Governor/Chairman, DDA to have changed the user of the land contrary to the Land Use Plans of the area without following the procedure prescribed by the statute.

8. From the above facts it is apparent that the plot in question all through is for a Primary School as per the Land Use Plan of the area and not for children's park. Moreover, on the basis of material on record, more particularly the contents of the written statement filed on behalf of defendants 1 and 2 prima facie it is apparent that the plot in question allotted to defendant No.2 is other than the plot in respect of which the compromise is alleged to have been arrived at between the plaintiff, the Delhi Development Authority and the Mohan Memorial Education Society.

9. From the narration of the above facts, it is apparent that the plaintiffs have no prima facie case and no balance of convenience is in their favour and as such they are not entitled to any relief as prayed for by them in the application filed by them under Order XXXIX Rule 1 and 2 read with Section 151 CPC.

10. In view of the above discussion, the application (IA 4013/95) filed by the plaintiffs under Order XXXIX Rule 1 and 2 read with Section 151 CPc is liable to be dismissed and the application (IA 7894/95) under Order XXXIX Rule 4 CPc filed by the defendant No.2 deserves to be allowed. Accordingly, the application (IA 4013/95) filed by the plaintiffs is dismissed and the application (IA 7894/95) filed by defendant No.2 is allowed. The order dated 9th May, 1995, passed in IA 4013/95 stands vacated forthwith. In the facts and circumstance of the case the parties are left to bear their own costs.

11. Nothing stated hereinabove shall amount to expression of any opinion on the merits of the case by this Court which shall be decided in due course on the basis of the evidence that may be adduced by both the parties in support of their respective contentions.

12. I.A. 4013/95 and IA 7894/95 stand disposed of in above terms.