Smt Ishmali Devi & Ors vs Delhi Development Authority & Ors
2009 Latest Caselaw 3317 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

+I.As.No.4832/2000,  4817/2006,  7382/2007,  11954  &
11957/2008, 3352/2009, 4174/2009 & 4544/2009 in CS(OS)
No. 1075/2000.



%                           Date of decision: 24th August, 2009


SMT ISHMALI DEVI & ORS                                  ....Plaintiffs
                    Through: Mr. P.N. Lekhi, Sr. Advocate with Mr. Kamal
                              Mehta & Mr. Brijesh Kr. Singh, Advocate

                               Versus

DELHI DEVELOPMENT AUTHORITY                             ....Defendants
& ORS
                    Through: Mr. Ravi Shankar Prasad, Sr. Advocate, with
                              Mr Ajay Verma, Ms. Sobnha Takkiar, Mr. Amit
                              Mehra Advocates for DDA.
                              Mr. D.P. Pandey & Mr. Neemesh Dubey,
                              Advocates for defendant No.7
                              Mr. Rajeev Sharma, Advocate for defendant
                              No.9.
                              Mr. Parag P. Tripathi, ASG with Ms Monica
                              Garg, Advocate for Safdarjung Hospital.
                              Mr. Mukul Gupta with Mr. Deepak Singh,
                              Advocates for defendants No.4&5/AIIMS.
                              Mr. Manoj Rath proxy counsel for Mr. V.K.
                              Tandon, Advocate for Delhi Police.


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.    Whether reporters of Local papers may
      be allowed to see the judgment?       No

2.    To be referred to the reporter or not?            No

3.    Whether the judgment should be reported                 No
      in the Digest?


RAJIV SAHAI ENDLAW, J.

1. This order is on the applications, of the plaintiffs for interim

relief (IA No.4832/2000), of the defendant DDA for vacation of the ex

parte order (IA No.7382/2007), of the plaintiffs for ordering

demarcation of the suit property (IAs No.11954/2008 & 4174/2009)

and of the defendant DDA for filing additional documents (IA

No.3352/2009).

2. The plaintiffs instituted the suit for declaration, injunction and

damages with respect to the land admeasuring 300 bighas

(approximately 65 acres) adjacent to Safdarjung Hospital and facing

the erstwhile Kamal Cinema at Safdarjung Enclave, New Delhi. It is

the case of the plaintiffs that their fore-fathers were granted the

Malgujari rights and the nambardari rights of the land in question

since times immemorial and had thus been enjoying the said land as

owner thereof; that in the Jamabandies/misl hakiyat available with

the plaintiffs, the predecessors of the plaintiffs and the plaintiffs

have been shown as owners in possession of the land; that the said

land had never been acquired, no acquisition proceedings with

respect thereto had been completed and the fore-fathers of the

plaintiffs or the plaintiffs had never been given any compensation

with respect to the said land; that the possession of the plaintiffs of

the said land had been uninterrupted, continuous and adverse to the

world at large including the defendant No.1 DDA and the defendant

No.2 Union of India and further that the possession of the plaintiffs

has been hostile to any claim of the DDA/Union of India; that the said

land was situated in village Arakhpur Bagh Mochi and which had

been urbanized vide notification of 19th February, 1999. The

plaintiffs further pleaded that the DDA had been threatening to

dispossess the plaintiffs from the said land on the plea that the same

belonged to State i.e., Sarkar Daulatmadar, even though the land

had never been acquired and possession thereof never taken. The

plaintiffs further pleaded that the DDA had, in the past, also

attempted to dispossess the plaintiffs from the said land and for

which purposes various legal proceedings as listed out in para 7 of

the plaint had to be instituted and wherein, statements were made

that the plaintiffs will not be dispossessed without due process of

law.

3. The plaintiffs further pleaded that proceedings under the

Public Premises (Eviction of Unauthorised Occupants) Act, 1972 had

also been initiated even though the land was not public premises.

The plaintiffs claimed that the entries of "Sarkar Daulatmadar" in

the ownership column of the revenue records with respect to the

said land were without any basis inasmuch as the land was never

acquired. The plaintiffs alleging that the DDA and Union of India

were clouding the title of the plaintiffs to the suit land, claim the

relief of declaration of their ownership, permanent injunction

restraining the DDA and Union of India from interfering with the

peaceful enjoyment and possession of the plaintiffs of the said land,

declaration that the proceedings before the Estate Officer were null

and void and also claim damages from the defendants. The plaintiffs

also claim mandatory injunction for directing the DDA to initiate

appropriate action for removal of illegal and unauthorized

encroachment including jhuggi jhopri clusters from the said land and

direction to the DDA to construct boundary wall around the Jhuggi

jhopri on the said land so as to prevent any further encroachment

thereof.

4. The defendant No.2 Union of India in its written statement

contends that the said land had been acquired vide notification

No.775 dated 21st December, 1911 and award No. 28 dated 27th

November, 1912 had been made with respect thereto. It is thus

contended that the suit filed in May, 2000 is barred by time. Plea is

also taken that the suit is barred by Sections 15 and 16 of the Public

Premises Act. It is denied that the plaintiffs have any right to or are

in possession of the said land and it is pleaded that the plaintiffs

were in fact, attempting to encroach upon the land. It is further

pleaded that the plaintiff No.1 Ishmali Devi along with predecessor-

in-interest of plaintiffs 3 and 4 had earlier filed CW.No.3819/1995

wherein vide order dated 30th October, 1995 the parties were

directed to maintain status quo and thereafter orders were made for

fencing of the said land. It is averred that under the notification and

award aforesaid and further under award 29 dated 14th February,

1913, the entire area of village Arakhpur Bagh Mochi stood acquired

and vested in the Government and possession taken; no revenue was

assessed with respect thereto thereafter and no Jamabandi had been

prepared after 1911-1912 and that, as per the revenue records, the

area in question was being shown as belonging to "Sarkar

Daulatmadar". It is claimed that a portion of the land had been

encroached by the Jhuggi Jhopri dwellers. It is further pleaded that

pursuant to agreement dated 31st March, 1937 between the

Secretary of State for India in Council on the one hand and the

erstwhile Delhi Improvement Trust on the other hand, the land of

entire village of Arakhpur Bagh Mochi was placed at the disposal of

Delhi Improvement Trust and which included the land subject matter

of the suit. It was further pleaded that upon constitution of the DDA,

the said land vested in the DDA and the claims of the plaintiffs with

respect thereto were described as bogus. The defendant No.2 Union

of India along with its written statement filed a typed copy of the

award No. 28(supra).

5. The defendant No.1 DDA also filed a written statement

claiming the land to have vested in it under the agreement of 1937

(Supra) and as Nazul land. It is further claimed that in 1964 and

1979 land admeasuring 7.30 acres out of the said land was handed

over to L&DO for extension of Safdarjung Hospital and another 3

acres was transferred to MCD for cremation ground. It is pleaded

that in the revenue records, the cultivators were never recorded as

lawful occupants. The defendant No.1 DDA denied the claims of the

plaintiffs with respect to the said lands.

6. The plaintiffs, along with the plaint, filed an application for

interim relief. When the suit came up before this court first, this

court required the plaintiffs to file an affidavit. An affidavit dated

25th May, 2000 of plaintiff No.1 Smt Ishmali Devi was filed stating

the area and the Khasra No., of which each of the plaintiffs claimed

entitlement. On 9th August, 2000 the counsels for the DDA and

Union of India stated that the proceedings under the Public Premises

Act were in progress and the plaintiffs will not be dispossessed

without the due process of law. The counsel for the plaintiffs

contended that the proceedings under the Public Premises Act were

without jurisdiction. In the circumstances it was directed that final

order in the said Public Premises Act proceeding be not passed till

the next date of hearing, though the proceedings may continue. On

the next date i.e., 28th August, 2000, it is only ordered that the

plaintiffs be not dispossessed from the said land till the final disposal

of the application for interim relief and the earlier order dated 9 th

August, 2000 stood modified to that extent.

7. On 5th August, 2002 a Local Commissioner was appointed by

this court to identify the layout of the boundary wall being

constructed at site and to prepare a site plan covering the entire

land and indicating the extent of actual occupancy and status of

different portions of the land and to coordinate the preparation of a

joint survey report by a team of officials of the L&DO and DDA and

South Delhi District Revenue Department. It is noted in the

subsequent order dated 8th August, 2002 that the Court

commissioner had informed the court that the land in question and

location was about 65 acres and out of which almost 48 acres was

lying vacant and uncultivated, except for a very small portion of one

acre patch. This court in order to safeguard the land from

encroachment directed that the DDA should continue with its

construction of the walls and encircle the vacant land as already

ordered by the Division Bench in the writ petition.

8. To compete the chronology of interim orders, on 7th August,

2008 it was complained by the plaintiffs that inspite of the interim

orders aforesaid, the boundary of Safdarjung Hospital on one side of

the said land had been broken down and a new boundary wall was

constructed by including a portion of the suit land within the area of

Safdarjung Hospital. This court directed maintenance of status quo

qua construction and possession and it was further clarified that no

construction activity be carried out even on the land which had been

shown included within the boundaries of Safdarjung Hospital. The

plaintiffs were directed to file another affidavit. An affidavit dated

19th August, 2008 of plaintiff Mr Rajpal had been filed in which it had

been stated that the plaintiffs were then in possession of land

admeasuring 243.14 bighas and the proceedings under the Public

Premises Act had been initiated with respect 231.02 bighas. It was

further clarified that besides the said 243.14 bighas there was no

other open land at site.

9. The defendants on 13th March, 2009 also filed in this court the

eviction orders issued under the Public Premises Act.

10. On 19th August, 2008 it was contended by the counsel for the

DDA that out of the suit land, land admeasuring 0.647 acres and

which had been included within the boundary of Safdarjung Hospital

was required for the purposes of construction of a Sports Injury

Centre for the Commonwealth Games 2010 and as such soil test with

respect thereto was permitted to be carried out. On 16th November,

2008 senior counsel for the plaintiffs, without prejudice to the rights

and contentions of the plaintiffs and without any special equities

being created in favour of the defendants agreed, that the

construction of the Sports Injury Centre on the said 0.647 acres of

land be carried out subject to the condition that if ultimately the

defendants lose in the suit, the defendants would compensate the

plaintiffs with the costs of the said land as per market valuation of

the land on the principle that the land had been acquired as on that

date and subject to the defendants being further bound by any

further orders of the court.

11. The senior counsel for the plaintiffs contended:-

i. that the predecessor of the plaintiffs were the nambardars

of land in Patti Pilanji in the year 1869; under Section 28 of

the Punjab Land Revenue Act, 1887 Nambardari rights were

granted only to the owners; the land continued to be

governed by the said Act till 1908 whereafter it is governed

by the Punjab and UP Act;

ii. that the Nazul Agreement of 1937 filed by the DDA and

relied upon by the DDA is not a document of title - unless it

is established that the land has been acquired by the Union

of India, it could not be given to DDA as Nazul land in 1937.

It is contended that no document had been filed to show that

the UOI is the owner of the land. It is however admitted that

in the revenue records since 1925 the land has been shown

as belonging to Sarkar Daulatmadar;

iii. that the possession of the plaintiffs had been admitted by the

DDA and Union of India in earlier legal proceedings and

which showed the plaintiffs to be in settled possession of the

lands;

iv. attention was invited to the jamabandis from 1869 to 1908 to

show the title of the predecessor of the plaintiffs to the said

land;

v. there was no notification for acquisition of the revenue

estate of Pilanji - the same was of Arakhpur Bagh Mochi;

vi. Pilanji is not mentioned in the schedule of the 1937

agreement. Reference therein also is to Arakhpur Bagh

Mochi;

vii. Attention was invited to the reply of UOI to IA.No.6802/2006

giving list of revenue estates and distinction was made

within Arakhpur Bagh Mochi and Alipur Pilanji @ Hasanpur.

On query it was informed that Alipur and Pilanji were

separate villages and were together called Hasanpur. It was

contended that the Revenue Estate of Pilanji did not form a

part of Arakhpur Bagh Mochi;

viii. With respect to the reliance by Union of India on Notification

under Section 6 of the Land Acquisition Act, it was

contended that the same is only in aid of acquisition and is

not proof of acquisition; acquisition is completed only after

the procedure prescribed in Sections 9 and 10 of Land

Acquisition Act is gone through and resulting in award under

Section 11 and possession being taken under Section 16. It

was contended that till all the steps are completed, the

owner is not divested of his ownership. It was contended that

even though the original award had not been filed by the

Union of India but the typed copy of the award filed by the

Union of India with its written statement was only with

respect to an area of 787.6 acres which matches with the

area of Arakhpur Bagh Mochi and not of Pilanji. It was thus

contended that the award even, if any, is not of the land in

suit which is in Pilanji and not in Arakhpur Bagh Mochi.

Reliance was placed on Kochkunju Nair Vs. Kosh

Alexander (1999) 3 SCC 482 and Manmohan Service

Station Vs. Mohd. Haroon Japanwala AIR 1994 Delhi 337

to the effect that ownership comprises of right to possession,

right to enjoy and right to dispose of and it was asserted that

the plaintiffs ought not to be deprived of the said rights. It

was contended that on the land in Arakhpur Bagh Mochi

which was acquired, the colony of Sarojini Nagar has come

into existence, the land subject matter of the suit is in

Pilanji;

ix. that the plaintiffs without prejudice to their rights, claim or

title to the land had in the plaint also claimed title by way of

adverse possession; Reliance is also placed on Sopan

Sukhdeo Sable Vs. Asst. Charity Commissioner (2004) 3

SCC 137 on as to what is settled possession;

x. it is contended that the possession of the plaintiffs/their

predecessors of the land is admitted from the revenue

records and the plea of acquisition of the land from

plaintiffs/their predecessors; the defendants by initiation of

proceedings under the Public Premises Act w.e.f. 1980 also

admit possession of plaintiffs. It is contended that the

possession of the plaintiffs in between also ought to be

presumed. Wigmore on Evidence is cited to contend that

"subsequent and earlier prove in between also" and that

person is possession is deemed to be owner;

xi. it is contended that the plaintiffs wrongly claimed the suit

land to be in Arakhpur Bagh Mochi though the same is in

Pilanji. It was contended that the person in possession is

presumed to be the owner. Salmond's Jurisprudence 12th

Edition "Idea of Possession" and State of Missouri Vs Ray

P Holland 64 Lloyds Edition 641 & Stroud's Judicial

Dictionary, 17th Edition were cited to contend that

possession is beginning of ownership and it was argued that

even if it was held that the land was acquired, from the

factum of the plaintiffs having continued in possession

thereof, the plaintiffs had acquired rights with respect to the

said land;

xii. Punjab Land Revenue Rules were cited with respect to the

appointment of Nambardar and Headman and the judgments

reported in Harnam Singh Vs. Jagat Singh 1953 LLT 1;

1933 LLT 43 and 1935 Revenue Rulings 31 were cited in this

regard. It was contended that in 1911 there were two

Mauzas - Pilanji and Arakhpur Bagh Mochi. It was further

sought to be demonstrated that in 1925, 30 revenue estates

were clubbed into in to 5 estates only and it was only then

that Pilanji became part of Arakhpur Bagh Mochi. It was

contended that it was for this reason that at the time of

Nazul Agreement of 1937, Pilanji formed part of Arakhpur

Bagh Mochi. It is contended that at the time of alleged

acquisition notification and award in the years 1911-1912,

Arakhpur Bagh Mochi did not include Pilanji and thus

acquisition of Arakhpur Bagh Mochi, even if any, did not

mean acquisition of Pilanji;

xiii. it was contended that the Union of India and DDA had not

even shown Section 4 Notification with respect to the land

and on inquiry it was admitted that though under Section

114 of the Evidence Act, it shall be presumed that Section 6

Notification was followed by Section 4 Notification but it was

contended that the same would be a rebuttable presumption.

International Airport Authority of India Vs. MCD ILR

1991 (2) Delhi 265 para 28 was cited to canvas that entry in

Khasra Girdawri of the ownership of Central Government is

not reliable. It was contended that even though in 1937

Pilanji was included in the revenue estate of Arakhpur Bagh

Mochi but at the time of alleged acquisition it formed a

separate revenue estate;

I may, however, add that Section 6 Notification relied

upon by the Union of India and DDA includes both

Arakhpur Bagh Mochi and Pilanji and thus this

controversy on which detailed arguments were made is

a bogey;

xiv. it was contended that the defendants had not produced any

notice of Land Acquisition Collector to any person under

Sections 9 and 10 and nothing was shown that the

acquisition, in fact, had taken place or that the possession

taken. Reference in this regard was made to Special Land

Acquisition Officer Vs. M/s Godrej 7 Boyce_(1988) 1 SCC

50;

xv. Several judgments as well as Snell's Equity (2000 Edition)

was cited to contend that the plea of adverse possession and

title can be taken together.

xvi. However, it is not deemed expedient to refer to the said

judgments, since the Supreme Court has in L.N.

Aswathama Vs. P. Prakash MANU/SC/1222/2009

reiterated that the same is impermissible;

xvii. It was contended that the award, typed copy whereof has

been filed, is of Arakhpur Bagh Mochi and not of Pilanji;

xviii. with respect to the register of payment filed by DDA

alongwith IA.No.10278/2008, during the hearing it was

contended that the same was also of Alipur and not of Pilanji;

even otherwise it was contended that the register was not

complete. Several other holes were poked in the case of the

Union of India and DDA of acquisition of the land. It was

contended that the certificate of having taken over

possession of the land on acquisition had not been filed.

Various other objections were taken to the documents filed

by the DDA in IA.No.12078/2008 i.e., of the source thereof

being vague, translation thereof as required by the rules

having not been filed; of there being no certification of the

documents; of the same being incomplete; of various

insertions therein; of the same being forged and of the same

being at variance with the pleadings. It was contended that

several of the villages mentioned in Section 6 Notification

relied upon were till date un-acquired and which shows that

there was no acquisition pursuant to this Notification;

xix. that DDA was required to maintain a property register under

Section 57 of the DDA Act and no such register having

entries of the land was shown. It was contended that adverse

inference ought to be drawn against DDA; Under Section 22

DDA could transfer only the land which had been vested by

the Union of India and without such vesting DDA could not

have transferred any land to Safdarjung Hospital;

xx. on the proposition that mutation entries do not create title,

reliance was placed on Suraj Bhan Vs. Financial

Commissioner (2007) 6 SCC 186; Bitola Kuer Vs. Ram

Charan AIR 1978 All 555 and Nanda Kumar Das Vs.

Emdad Ali AIR 1927 Calcutta 49;

xxi. Only if both contending parties appear to have participated

in proceedings resulting in mutation, do the mutation entries

have presumptive value; reliance is placed on H.P.S.

Chawla Vs. MCD (2005) 125 DLT 535 and Atma Singh Vs.

State of Haryana (2008) 2 SCC 568, it was contended that

hear there was nothing to show that predecessor of the

plaintiffs had participated in mutation proceedings showing

the "Sarkar Daulatmadar" as owner and plaintiffs as

occupancy tenants;

xxii. Attention was invited to reply by L&DO to IA No.6802/2006

where it is only mentioned that the land was notified for

acquisition and it is not said that possession was taken over;

xxiii. Reliance was placed on Dalpat Kumar Vs. Prahlad

Singh 1992 (1) SCC 719 to contend that the suit being for

injunction, if interim relief was not granted and the land was

lost, irreparable injury is inherent to the plaintiffs;

xxiv. On balance of convenience, reliance was placed on

Gurumukh Singh Vs. MIS Inderprasth Finance Co. 1976

RLR (1); K.M.P. Aboobucker Vs. K. Kunhamoo AIR 1958

Mad 287; State of Gujrat, Secretary, Home Department

Vs. The Ahmedabad Urban Development Authority AIR

1997 Gujarat 22; M/s. G.M. Modi Hospital & Research

Centre Medical Science Vs. Sh. Shankar Singh

Bhandari ILR 1995 (2) Delhi 792 and Chandu Lal Vs. MCD

AIR 1978 Delhi 174.

11. The senior counsel for the DDA contended:

i. that the entry in the revenue records of Arakhpur Bagh Mochi

with respect to the said land has not been challenged;

ii. existence of Section 6 Notification has not been challenged

and the only argument was of possession in pursuance of the

acquisition having not been taken over;

iii. In the plaint itself earlier legal proceedings initiated by the

plaintiffs/their predecessors are referred to. It was contended

that in the pleadings in the earlier legal proceedings no right

of ownership was claimed and right only as a licencee was

claimed. The argument is that the plaintiffs in the present suit

have attempted expand their claims;

iv. that the land aforesaid is required urgently in public interest

for the 2010 Commonwealth Games as well as for Delhi Metro

Rail Corporation. Documents in this regard are filed with IA

No.7382/2007;

v. Discrepancies were pointed out in the description of the land.

In para 1 of the plaint, the land is described as in village

Mujahidpur and comprising of Killas 1 and 8 only and it is only

in prayer paragraphs that the land is described as measuring

300 bighas. In the earlier proceedings also the land was

described as in Mujahidpur and it is, during the course of

arguments that the case of the land being in Pilanji has been

made out;

vi. Attention was invited to the pleadings in the earlier suit

wherein the predecessors of the plaintiffs had claimed to be

tenant of the land and had not made any challenge to the

entries in the revenue record of Arakhpur Bagh Mochi

showing "Sarkar Daulatmadar" as the owner of the land;

vii. It was contended that the plaintiffs/their predecessors having

instituted the earlier suits, with full knowledge of the

Government being the owner, the plaintiffs are now after 30

years not entitled to challenge the title of the Union of India;

viii. with respect to one of the earlier legal proceedings mentioned

in the plaint, it was shown that the possession had been taken

over and the injunction vacated and the suit dismissed as

withdrawn. It was contended that the present suit was not

maintainable for this reason also;

ix. It is urged that the plaintiffs cannot be permitted to keep on

improving their case;

x. it was contended that jurisdiction of this court to correct the

entries in the revenue records is barred and the plaintiffs /

their predecessors who have been litigating since 1962 have

till date not taken any step for correction of the said revenue

entries;

xi. it was contended that thus the plaintiffs have not been able to

demonstrate even prima facie any title to the premises.;

xii. it was contended that that the plaintiffs had in the plaint

referred to earlier legal proceedings but had not filed any

copy thereof; adverse inference ought to be drawn against the

plaintiff; if the plaintiffs did not claim ownership in the earlier

proceedings, they cannot be permitted to do so now. Reliance

was placed on Deva Ram Vs. Ishwar Chand (1995) 6 SCC

733 and Shiv Kumar Sharma Vs. Santosh Kumari (2007) 8

SCC 600. It was further contended that even in the plaint in

the present suit it is not the case that the plaintiffs had in the

earlier proceedings claimed ownership to the land;

xiii. it was further urged that the plaintiffs had in the plaint in the

present suit also claimed only Nambardari rights; it is argued

that the Nambardars were only for recovery of rent and had

no title to the property; that the plaintiffs could be Nambardar

only under the ownership of Union of India. Reference was

also made to P.T. Munichikkanna Reddy Vs. Revamma

(2007) 6 SCC 59 to contend that the plaintiffs could not claim

adverse possession. In this context R. Chandevarappa Vs.

State of Karnataka (1995) 6 SCC 309; State of Rajasthan

Vs. Harphool Singh (2000) 5 SCC 652; Puran Singh Vs.

State of Punjab (1975) 4 SCC 518 and Rame Gowda Vs. M.

Varadappa Naidu (2004) 1 SCC 769 were also cited.

xiv. Lastly it was urged that since the land was required for public

project and in national interest even in the event of the

plaintiffs succeeding in the suit, the land will nevertheless

have to be acquired.

xv. The ASG appearing for the Union of India also relied upon the

judgment of this court in Satish Khosla Vs. M/s Eli Lilly

Ranbaxy Ltd. 71 (1998) DLT 1 to contend that the plaintiffs

having suppressed their pleadings in the earlier legal

proceedings are not entitled to the discretionary relief of

injunction.

12. The senior counsel for the plaintiffs to meet the argument of,

the plaintiffs/their predecessor in the earlier legal proceedings

having claimed to be only occupants/licencee, argued that the plaint

in earlier suit related to the land in village Mujahidpur, while the suit

land is in village Pilanji. It was contended that the earlier suits did

not relate to the suit land but related to other lands with respect

whereto the plaintiffs/their predecessors were mere

occupants/licencees. On query, as to why, if it was so, reference to

those suits was made in the plaint in the present suit, it is answered

that it is a mistake. It may be noticed that in the writ petition

(Supra) also, the land is described as in village Mujahidpur.

It was further contended that the documents filed by the

plaintiffs and from which the senior counsel for the defendants had

pointed out the land to be situated in Mujahidpur not in Pilanji had

also been wrongly filed. It was contended that under the Punjab

High Court Rules those documents filed in earlier suits were not

admissible in evidence and were not in accordance with the Punjab

Land Revenue Act. Elaborate submissions were made as to what are

the documents of rights and it was contended that the documents

filed by the plaintiffs and from which the land appears to be in

Mujahidpur were not such documents of rights. It was further

contended that the plaintiffs were illiterate people and no proper

inquiry had been made from them and it was further contended that

if the original records were to be brought, the same would not

contain the records, copies of which had been filed mistakenly by the

plaintiffs. It was lastly contended that the possession of the plaintiffs

being admitted and the plaintiffs being in settled possession were

entitled to protect their possession during the trial.

13. For disposal of applications under Order 39 Rules 1 and 2 CPC

the test of prima facie case irreparable injury and balance of

convenience are to be applied. However, of late the courts have

added yet another test. The Supreme Court in Ramniklal N.

Bhutta and another v. State of Maharashtra AIR 1997 SC 1236

held as under:

10. Before parting with this case, we think it necessary to make a few observations relevant to land acquisition proceedings. Our country is now launched upon an ambitious programme of all-round economic advancement to make our economy competitive in the world market. We are anxious to attract foreign direct investment to the maximum extent. We propose to compete with China economically. We wish to attain the pace of progress achieved by some of the Asian countries, referred to as "Asian tigers", e.g., South Korea, Taiwan and Singapore. It is, however, recognised on all hands that the infrastructure necessary for sustaining such a pace of progress is woefully lacking in our country. The means of transportation, power and communications are in dire need of substantial improvement, expansion and modernisation. These things very often call for acquisition of land and that too without any delay. It is, however, natural that in most of these cases, the persons affected challenge the acquisition proceedings in courts. These challenges are generally in the shape of writ petitions filed in High Courts. Invariably, stay of acquisition is asked for and in some cases, orders by way of stay or injunction are also

made. Whatever may have been the practices in the past, a time has come where the courts should keep the larger public interest in mind while exercising their power of granting stay/injunction. The power under Article 226 is discretionary. It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. And in the matter of land acquisition for public purposes, the interests of justice and the public interest coalesce. They are very often one and the same. Even in a civil suit, granting of injunction or other similar orders, more particularly of an interlocutory nature, is equally discretionary. The courts have to weigh the public interest vis-a-vis the private interest while exercising the power under Article 226 indeed any of their discretionary powers. It may even be open to the High Court to direct, in case it finds finally that the acquisition was vitiated on account of non-compliance with some legal requirement that the persons interested shall also be entitled to a particular amount of damages to be awarded as a lumpsum or calculated at a certain percentage of compensation payable. There are many ways of affording appropriate relief and redressing a wrong; quashing the acquisition proceedings is not the only mode of redress. To wit, it is ultimately a matter of balancing the competing interest. Beyond this, it is neither possible nor advisable to say. We hope and trust that these considerations will be duly borne in mind by the courts while dealing with challenges to acquisition proceedings.

14. Prior thereto in Shiv Kumar Chadha v. Municipal

Corporation of Delhi (1993) 3 SCC 161 also the Supreme Court

observed :

30. It need not be said that primary object of filing a suit challenging the validity of the order of demolition is to restrain such demolition with the intervention of the Court. In such a suit the plaintiff is more interested in getting an order of interim injunction. It has been pointed out repeatedly that a party is not entitled to an order of injunction as a matter of right or course. Grant of injunction is within the discretion of the Court and such discretion is to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the Court that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of temporary injunction is, thus, to

maintain the status quo. The Court grants such relief according to the legal principles - ex debited justitiae,. Before any such order is passed the Court must be satisfied that a strong prima facie case has been made out by the plaintiff including on the question of maintainability of the suit and the balance of convenience is in his favour and refusal of injunction would cause irreparable injury to him.

31. Under the changed circumstance with so many cases pending in Courts, once an interim order of injunction is passed, in many cases, such interim orders continue for months; if not for years. At final hearing while vacating such interim orders of injunction in many cases, it has been discovered that while protecting the plaintiffs from suffering the alleged injury, more serious injury has been caused to the defendants due to continuance of interim orders of injuction without final hearing. It is a matter of common knowledge that on many occasions even public interest also suffers in view of such interim orders of injunction, because persons in whose favour such orders are passed are interested in perpetuating the contraventions made by them by delaying the final disposal of such applications. The Court should be always willing to extend its hand to protect a citizen who is being wronged or is being deprived of a property without any authority in law or without following the procedure which are fundamental and vital in nature. But at the same time the judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the Court.

15. In between in Mahadeo Savlaram Shelke and Ors. v. Pune

Municipal Corporation (1995) 3 SCC 33 also the Supreme Court

observed:

12. In "Modern Law Review", Vol 44, 1981 Edition, at page 214, R.A. Buckley stated that "a plaintiff may still be deprived of an injunction in such a case on general equitable principles under which factors such as the public interest may, in an appropriate case, be relevant. It is of interest to note, in this connection, that it has not always been regarded as altogether beyond doubt whether a plaintiff who does thus fail to substantiate a claim for equitable relief could be awarded damages". In "The Law Quarterly Review" Vol 109, at page 432 (at p.

446), A.A.S. Zuckerman under Title "Mareva Injunctions and Security for Judgment in a Framework

of Interlocutory Remedies" stated that "if the plaintiff is likely to suffer irreparable or uncompensable damage, no interlocutory injunction will be granted, then, provided that the plaintiff would be able to compensate the defendant for any unwarranted restraint on the defendant's right pending trial, the balance would tilt in favour of restraining the defendant pending trial. Where both sides are exposed to irreparable injury pending trial, the courts have to strike a just balance". At page 447, it is stated that "the court considering an application for an interlocutory injunction has four factors to consider : first, whether the plaintiff would suffer irreparable harm if the injunction is denied; secondly, whether this harm outweighs any irreparable harm that the defendant would suffer from an injunction; thirdly, the parties' relative prospects of success on the merits; fourthly, any public interest involved in the decision. The central objective of interlocutory injunctions should therefore be seen as reducing the risk that rights will be irreparably harmed during the inevitable delay of litigation".

13. In "Injunctions" by David Bean, 1st Edn, at page 22, it is stated that "if the plaintiff obtains an interlocutory injunction, but subsequently the case goes to trial and he fails to obtain a perpetual order, the defendant will meanwhile have been restrained unjustly and will be entitled to damages for any loss he has sustained. The practice has therefore grown up, in almost every case where interlocutory injunction is to be granted, of requiring the plaintiff to undertake to pay any damages subsequently found due to the defendant as compensation if the injunction cannot be justified at trial. The undertaking may be required of the plaintiff in appropriate cases in that behalf. In "Joyce on Injunctions" Vol. 1 in paragraph 177 at page 293, it is stated "Upon a final judgment dissolving an injunction, a right of action upon the injunction bond immediately follows, unless the judgment is superseded. A right to damages on dissolution of the injunction would arise at the determination of the suit at law".

14. It would thus be clear that in a suit for perpetual injunction, the court should enquire on affidavit evidence and other material placed before the court to find strong prima facie case and balance of convenience in favour of granting injunction otherwise irreparable damage or damage would ensue to the plaintiff. The court should also find whether the plaintiff would adequately be compensated by damages if injunction is not granted. It is common experience that injunction normally is asked for and granted to prevent the public authorities or the respondents to proceed with execution of or implementing scheme of public utility or granted contracts for execution thereof. Public interest is, therefore, one of the material and relevant

considerations in either exercising or refusing to grant ad interim injunction. While exercising the discretionary power, the court sould also adopt the procedure of calling upon the plaintiff to file a bond to the satisfaction of the court that in the event of his failing in the suit to obtain the relief asked for in the plaint, he would adequately compensate the defendant for the loss ensued due to the order of injunction granted in favour of the plaintiff. Even otherwise the court while exercising its equity jurisdiction in granting injunction has also jurisdiction and power to grant adequate compensation to mitigate the damages caused to the defendant by grant of injunction restraining the defendant to proceed with the execution of the work etc., which is retrained by an order of injunction made by the court. The pecuniary award of damages is consequential to the adjudication of the dispute and the result therein is incidental to the determination of the case by the court. The pecuniary jurisdiction of the court of first instance should not impede nor be a bar to award damages beyond it pecuniary jurisdiction. In this behalf, the grant or refusal of damages is not founded upon the original cause of action but the /consequences of the adjudication by the conduct of the parties, the court gets inherent jurisdiction in doing ex debito justitiae mitigating the damage suffered by the defendant by the act of the court in granting injunction restraining the defendant from proceeding with the action complained of in the suit It is common knowledge that injunction is invariably sought for in laying the suit in a court of lowest pecuniary jurisdiction even when the claims are much larger than the pecuniary jurisdiction of the court of first instance, may be, for diverse reasons. Therefore, the pecuniary jurisdiction is not and should not stand an impediment for the court of first instance in determining damages as the part of the adjudication and pass a decree in that behalf without relegating the parties to a further suit for damages. This procedure would act as a check on abuse of the process of the court and adequately compensate the damages or injury suffered by the defendant by act of court at the behest of the plaintiff.

15. Public purpose of removing traffic congestion was sought to be served by acquiring the building for widening the road. By orders of injunction, for 24 years the public purpose, was delayed. As a consequence execution of the project has been delayed and the costs now stand mounted. The courts in the cases where injunction are to be granted should necessarily consider the effect on public purpose thereof and also suitably mould the relief. In the event of the plaintiffs losing the suit ultimately, they should necessarily bear the consequences, namely, escalation of the cost or the damages the Corporation suffered on account of injunction issued by the courts. Appellate court had not adverted to any of the material aspects

of the matter. Therefore, the High Court has rightly, though for different reasons, dissolved the order of ad interim injunction. Under these circumstances, in the event of the suit to be dismissed while disposing of the suit the trial court is directed to assess the damages and pass a decree for recovering the same at pro rata against the appellants.

16. This court also in matters relating even to copyright and

patents has been giving due regards to the element of public interest

while dealing with injunction applications. Reference in this regard

may be made to i) The Chancellor Masters and Scholars of The

University of Oxford Vs Narendera Publishing House 2008 (38)

PTC 385 wherein this court declined the relief of injunction with

respect to guide books; ii) judgment of the Single Judge (148 (2008)

DLT 598) and the Division Bench (MANU/DE/0381/2009) of this

court in F. Hoffmann-La Roche Ltd. and Anr. v. Cipla Ltd. where

one of the considerations for declining the injunction was the high

costs of the drugs of the plaintiff and the comparative low costs of

the drugs being marketed in India.

17. The Supreme Court in ONGC Ltd Vs Saw Pipes Ltd AIR 2003

SC 2629 also held that where loss is caused to the public, there is no

measure of determining the loss. Instances in that case were given

of delays in construction of a bridge or a road which harms the

public in general and no individual municipality or government in

particular. The Supreme Court in such cases thus held insistence on

proof of loss to be not proper.

18. It is the contention of the Union of India and the DDA in the

present case that the land aforesaid is required for public works,

during the arguments it was contended that the same is urgently

required for a temporary godown in relation to DMRC project. In

fact, on the day when the senior counsel for the plaintiffs had

conceded to construction for the Sports Injury Centre on a portion of

the said land, it was suggested that similarly, the works of DMRC be

also permitted to be carried out on the said land on the same

conditions, i.e in the event of the plaintiffs succeeding in the suit,

they would be entitled to compensation for acquisition of the said

land as mentioned in order dated 19th August, 2008. However, the

senior counsel for the plaintiffs on instructions from the plaintiffs

had declined the same.

19. Testing the element of prima facie case in the context of the

aforesaid, in my view it cannot be said that the plaintiffs have a

prima facie case of being the owners of the land as claimed in the

plaint in the present suit. The senior counsel for the plaintiffs,

rather than showing the prima facie case of the ownership of the

plaintiffs sought to guide the arguments towards whether the

defendants have prima facie established acquisition of the land or

not. The plaintiffs by addressing lengthy arguments and citing a

plethora of case law have though succeeded in pushing this matter to

the back burner. However, at this stage, it is not the defence which

has to be tested but the case with which the plaintiffs have

approached the court which is to be gauged.

20. The single most important factor coming in the way of the

plaintiffs establishing a prima facie case of ownership is the stand of

the plaintiffs/their predecessors in the earlier litigations of being

occupancy tenants/licencees with respect to the said land under the

Government of India. I am unable to accept the explanation of the

senior counsel for the plaintiffs in this regard. The plaintiffs cannot

be classified as villagers. The plaintiffs have been litigating with

respect to this valuable land as per their own admissions in the

plaint since the year 1962 and are well aware of their rights and

have at all stages had the benefit of eminent legal assistance. The

plaintiffs have categorically stated in the plaint that the earlier legal

proceedings were with respect to the same land with respect

whereto the suit was filed. The ingenuity of the explanation of the

senior counsel for the plaintiffs of it having been mistakenly stated

that the other proceedings were with respect to the same land

cannot save the plaintiffs. Mistake has to be pleaded and not

argued. It was the plaintiffs who in an attempt to take advantage of

the orders in the earlier proceedings whereby the plaintiffs claimed

that the defendants had agreed not to disturb the

occupation/possession of the plaintiffs, had referred to the same. The

plaintiffs cannot be permitted to distance themselves from the same

when confronted with the contradictory stand contained in their

pleadings in the said proceedings. Similarly, the argument of the

senior counsel for the plaintiffs that, the documents filed by the

plaintiffs themselves in support of their case and showing the land to

be in a village other than the village argued by the plaintiffs now

were filed mistakenly, also does not carry much weight. In fact on

the basis thereof, at least for the purposes present applications, the

edifice of the case built during the arguments falls.

21. I also find considerable force in the contention of the

defendants that the plaintiffs having admitted that in the revenue

records of the land, "Sarkar Daulatmadar" i.e. the Government has

been entered as the owner thereof have at least at this stage not

shifted the burden of establishing otherwise. It is the case of the

plaintiffs themselves that the land has been so recorded for the last

over 40 years. In spite of the same, the plaintiffs did not take any

step whatsoever to have the said entries corrected. In fact the

plaintiffs themselves have sought to establish their title to the land

on the basis of the said revenue records and not on any other

document. At this stage, no reason is found to disbelieve the said

revenue records and as per which for the last over 40 years prior to

the institution of the suit the Government of India is shown as the

owner of the land.

22. As far as the claim of the plaintiffs to injunction on the ground

of being in possession of the land is concerned, it is not disputed that

the land is open; no cultivation is being carried thereon. The

principle with respect to such open land is that the same is deemed

to be in possession of the person having title thereto. Reliance in

this regard can be placed upon Naval Ram, Laxmi Das Devmurari

Vs. Vijayaben Jayvantbhai Chauda AIR 1998 Gujarat 17 where it

has been held that the concept of possession is an abstract one; the

ordinary presumption is that possession follows title; presumption of

possession over an open land always is deemed to be that of the

owner; an open piece of land shall be presumed to be in possession

of the owner unless it is proved by the trespasser that he has done

some substantial acts of possession over the land which may excite

the attention of the owner that he has been dispossessed; the

presumption of owner being in possession of open land becomes

strong when the defendant fails to establish the ground on which he

claims to have come in possession. This is so because proof of actual

possession is impossible on account of nature of such land. In the

present case, it is the admitted position that the land has been

fenced under orders of the writ court. The plaintiffs themselves have

claimed the relief of asking the defendants to remove the

encroachers on a portion of the land. For this reason also, it cannot

be said that the plaintiffs are entitled to an injunction against their

dispossession.

23. As far as the ingredient of irreparable injury is concerned,

during the course of lengthy arguments it has been repeatedly urged

by the senior counsel for the plaintiffs that the plaintiffs have no

objection to the defendants acquiring the land now and paying the

prevalent compensation therefor, if required for public purpose as

was being urged by the senior counsels/ASG for the defendants. On

the same reasoning, concession with respect to 0.647 acres of land

was given on 19th August, 2008. Thus, it is not the position that the

dispute being with respect to land, order of status quo must follow.

This lis is all about compensation for the land i.e. whether it has

already been paid at the rates of acquisition of the year 1911 or is to

be paid at the rates prevalent today. I do not find any difference in

calculating the said value for 0.647 acres or for the entire land.

Thus, even in the event of the plaintiffs succeeding, it is not as if the

plaintiffs will suffer irreparable injury. The plaintiffs can always be

compensated as per their claims.

24. In these circumstances, I am of the view that if injunction, as

claimed, is issued, the same is likely to delay the public project for

which the land is required. The loss which would be suffered by the

public at large would be incalculable and irreparable. No possible

condition can be imposed on the plaintiffs to make good the said loss

in the event of the plaintiffs ultimately being not found entitled to the

relief. Per contra, if injunction is refused and resultantly the land is

allowed to be used for public projects and if ultimately the

defendants are found to have failed in their defence, the plaintiffs

can be compensated.

25. The question of balance of convenience has to be considered

with the question of public interest as aforesaid. The city is poised

for the Commonwealth Game of the year 2010. The DMRC work on

the Mehrauli line for which purpose the land is stated to be required

is underway. The loss which will be suffered to the public at large in

the event of the said line being not completed in time for the reasons

of the said land being not available would be far more than the

injury, if any, to the plaintiffs. Thus, the interest of the handful of

plaintiffs must give way to the larger public interest.

26. In the face of it having been demonstrated as aforesaid that

the plaintiffs have concealed from this court that the plaintiffs had in

the earlier proceedings admitted themselves to be licencees/tenants

and not claimed themselves to be the owner of the land, the plaintiffs

otherwise also are not found entitled to the exercise of any discretion

in their favour. The application of the plaintiffs for interim relief

being IA.No.4832/2000 is dismissed. IA.No.7382/2007 under Order

39 Rule 4 CPC is allowed. The ad interim orders are vacated.

27. The senior counsel for the plaintiffs has also made elaborate

arguments on the application for Hadshikni and/or for having the

land demarcated. I, however, find that there is no dispute as to the

identity of the land. There was no such dispute at the time of the

institution of the suit also. The occasion therefor has arisen owing to

the arguments raised of the land being in village Pilanji, in

contravention of the case earlier made of the land being in village

Mojahidpur and/or Arakhpur Bagh Mochi. In view of such

contradictory stands of the plaintiffs, the said application cannot

hold up the disposal of the applications for interim relief. There is

yet another reason for me to not allow the said application. The

entire surrounding area has been developed. The

demarcation/Hadshikni in revenue terms was/is carried out with

reference to fixed points contained in the revenue records and all of

which are likely to have disappeared with the urban development all

around the said land. Also such demarcation is likely to lead to

objections and in my view for the reasons aforesaid would not serve

any purpose at this stage. It would however remain open to the

plaintiffs at the stage of evidence to, if entitled to, lead relevant

evidence. In fact no court orders are required for such demarcation.

The plaintiffs by approaching the revenue authorities and if entitled

to can have the said demarcation carried out and lead evidence with

respect thereto. In fact the plaintiffs in the last so many years since

when the suit has been pending ought to have done so and adverse

inference can be drawn against the plaintiffs for the same. IA

No.11954/2008 & IA No.4174/2009 are thus dismissed.

28. As far as the application of the defendant DDA for filing

additional documents IA No.3352/2009 is concerned, issues having

not been framed the same is allowed. The plaintiffs have already

been permitted to file additional documents in response thereto.

RAJIV SAHAI ENDLAW (JUDGE) 24th August, 2009 M/PP