Tilak Raj Aggarwal And Anr. vs Dda & Ors.
2009 Latest Caselaw 105 Del

              IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                    Date of Reserve : 02.07.2008
                                                    Pronounced on : 16.01.2009

+                            CS (OS) No.2091/1993

       Tilak Raj Aggarwal and Anr.                             ..... Plaintiffs
                            Through : . Mr.B.K. Goel with Mr.Anil Kumar Gupta
                            and Ms.Manju Goel, Advocates

                                     versus

       DDA & Ors.                                            ..... Defendants
                             Through : Mr.Bankey Bihari Sharma , Advocate.


CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT

       1.     Whether the Reporters of local papers
              may be allowed to see the judgment?           Yes

       2.     To be referred to Reporter or not?            Yes

       3.     Whether the judgment should be                Yes
              reported in the Digest?


S.RAVINDRA BHAT, J.

1. The plaintiffs seek a decree of injunction restraining the defendants from interfering with

their possession in respect of two plots, B-9 and B-10, Saraswati Garden, New Delhi (hereafter

collectively called "the suit property"); they also seek damages against the defendants for

wrongfully restraining them from constructing upon the property, as well as having the boundary

wall demolished.

2. The suit averments, briefly, are that one Madanlal Khanna, a colonizer, prepared a lay out

called Saraswati Garden, and developed it. It was formed out of Khasra Nos. 2363 and 2364,

village Basai Darapur, between the period 1955 and 1958. By two registered sale deeds, the suit

CS (OS) No. 2091/1993 Page 1 of Page 23 plots were conveyed to K.G. Puri and V.M. Puri, on 28-1-1956. The plots were sold by

registered sale deeds dated 21-3-1966, by the said two persons (vendees), to the plaintiffs. It is

contended that some heirs of the late Madanlal Khanna (Defendant Nos. 9 to 11) turned

dishonest, in 1984, and lodged a false first information report with the police and also filed a suit,

No. 264/84 (later renumbered as Suit No. 703/85 and hereafter described as such) for injunction

against certain official agencies, including the Delhi Development Authority (hereafter "DDA");

the Municipal Corporation of Delhi (hereafter "the MCD") etc. One K.S. Cheema too was made

a party in that suit. The plaintiffs contend that the suit was a collusive proceeding, and did not

mention any particulars about the property, and so on; even the MCD was dropped from the

array of parties on 11-12-1986. Later, on 25-12-1987, the police authorities were proceeded ex-

parte, and K.S. Cheema too, stated that he had no interest in the suit land, on the same day. The

DDA, in its statement recorded on 1-5-1987, deposed (Ex. PW-1/34) that possession of Khasra

No. 2464/2 had never been taken over by the Land Acquisition Collector.

3. In June, the plaintiffs started construction on the plots, when they were made aware of an

injunction order dated 9-6-84. The plaintiffs had sought for impleadment in that suit (OS

703/85); Defendant No. 9, in her reply to that application, denied that the suit plots were part of

the subject matter of her suit. The application for impleadment was dismissed on 23-5-1986.

Despite these developments, the plaintiffs were not permitted to construct on the suit plots, due

to the vague injunction order passed by the court in OS 703/85. The plaintiffs were therefore,

constrained to file a suit, i.e. Suit No. 963/1986 for declaration and injunction, against the

Defendants 9 to 11. This was decreed ex-parte, on 4-5-1987. In the meanwhile, the said

defendants, in their suit No. 703/85, introduced amendments; consequently, the plaintiff's

application to be made party to the proceedings, was allowed, by the court trying that case, on

CS (OS) No. 2091/1993 Page 2 of Page 23 27-2-1989. The plaintiffs contend that the Defendant Nos. 9 to 11 sought to defeat their rights

further, and relied upon what they term fictitious documents, sale of the suit plots to the

Defendant Nos. 12 and 13, on 30-7-1990.

4. On the Defendant Nos. 9 to 11's application, under Order 9 rule 13, Code of Civil

Procedure (CPC) the ex parte decree in favour of the plaintiffs, in their injunction suit 963/1986,

was set aside. Subsequently, they filed a written statement, admitting that they had no concern

with the suit plots. They were proceeded ex parte again, and the suit was decreed against them,

on 27-7-1992. The plaintiffs contend that soon after the decree, they started construction in the

second week of April, 1993, as the decree had achieved finality. Then, on 12-4-1993 and 19-4-

1993, the sixth defendant, allegedly in collusion with other defendants, falsely complained to the

police stating that debris ("malba") was being removed from the suit plots, which belonged to

DDA. The police therefore, stopped construction work and demolished the boundary wall and

threatened not to allow any construction. The plaintiffs also aver to having issued a statutory

notice to the DDA on 25-6-1983. They allege that prior to land acquisition proceedings, in 1965,

the land was divided into two portions, i.e Khasra Nos. 2364/1 and 2364/2; only the latter,

2364/2 was sought to be acquired. Proceedings were, however, not complete, since possession

was not taken by the appropriate Government, as the land was partly built up.

5. A common written statement has been filed on behalf of Defendant Nos. 1 to 6; the other

defendants were proceeded ex-parte by order dated 27-7-1994. They had been served; some of

them were even represented during earlier stages of the proceedings, in the suit. The common

written statement of Defendant Nos. 1 to 6 is signed only on behalf of Defendant No. 1 (DDA);

the court had directed that signatures on behalf of the other defendants should be secured, by its

order, dated 27-7-1994. That was not complied with.

CS (OS) No. 2091/1993 Page 3 of Page 23

6. The defendants' stand is that the plaintiffs' predecessors in interest were not recorded

owners of the suit plot, in the revenue records. Their title to the suit lands is disputed. It is

contended that the plaintiffs lack locus standi to maintain the suit. It is also alleged that Khasra

No. 2363 and 2364/2 were acquired by the appropriate Government (the Central Government);

reliance is placed on an award, (No. 1910/66). The defendants further allege that the entire lands,

including the suit property, were placed at the disposal of DDA, by notification dated 3-1-1968.

7. The suit is, according to the defendants, bad for non-joinder of necessary parties; the

Land Acquisition Collector, Delhi Government and the Union of India are necessary for disposal

of the suit. A similar contention is raised in respect of the efficacy of the decree in Suit. No.

963/86; the defendants aver that these official agencies and the DDA were not made parties in

that proceeding. Therefore, the decree in that suit does not bind them. The defendants also claim

that the reliefs sought in the suit cannot be granted, as they are in possession of the suit property,

which has vested with the Government.

8. In support of their case, the plaintiffs rely on the two sale deeds, PW-1/8 and PW-1/9

(dated 21-3-1966); mutation in the MCD records, Ex. PW-1/10 and PW-1/11; judgment and

decree dated 27-7-1992 (in Suit No. 963/86), being Ex. PW-1/12 and PW-1/13; Photographs Ex.

PW-1/19 to Ex. PW-1/23. Ex. PW-1/45 were relied on to show that the plaintiffs were not

allowed to construct on the suit plots of land. The plaintiffs rely on the order of regularization,

issued pursuant to Government of India's orders, by the MCD, being MCD resolution No. 278

dated 1-9-1978, as Ex. PW-1/97. They also rely on Ex. PW-1/49, a certified copy of the written

statement filed by Defendant Nos. 9 to 11, conceding that they had no concern with the suit

plots. Ex. PW-1/34, a certified copy of the statement recorded on behalf of the DDA, in CS No.

703/85, filed by Defendant Nos. 9 to 11, that possession of Khasra No. 2364/2, village Basai

CS (OS) No. 2091/1993 Page 4 of Page 23 Darapur had not been taken over by the Land Acquisition Officer, is relied on to say that the

lands were not acquired. The statement was made by the Assistant Settlement Officer, DDA. The

copy of a demarcation report disclosing proceedings, held on 19-7-1987 and measurement of the

sites prepared by revenue authorities has been produced as Ex. PW-1/49. Ex. PW-1/66 is relied

on to say that DDA sought to obstruct construction on the plot. Ex. PW-1/68, Ex. PW-1/71, Ex.

PW-1/72, Ex. PW-1/75; Ex. PW-1/78; Ex. PW-1/81 and Ex. PW-1/82 are relied on to show the

cost of constructing the boundary wall.

9. The plaintiff has relied on the testimony of five witnesses. The defendants, on the other

hand, rely on the Award Ex. PW-1/D1; they also rely on the extract of a notification dated 3-1-

1968, which records that 323-13 bighas of land in Basai Darapur were placed at the disposal of

DDA, by the President of India.

10. By order dated 15.04.1996 the following issues were framed by this court:

1. Whether both plots B-9 and B-10, Saraswati Garden, Delhi fall in Khasra No.

2364/2, Basai Darapur Village, Delhi and were acquired vide Award No. 1910

of 1966 and were placed at the disposal of Delhi Development Authority

under any valid and effective notification? OPD 1 to 6;

2. Whether suit plots were in possession of Delhi Development Authority at any

point of time and whether the DDA maintained it as a green belt at any point

of time? OPD 1 to 6;

3. Whether the plaintiffs have no locus standi to file the present suit. OPD;

CS (OS) No. 2091/1993 Page 5 of Page 23

4. Whether the Union of India, Delhi Administration or Land Acquisition

Collector are necessary parties? OPD 1 to 6;

5. Whether the suit has not been properly valued for the purpose of court fee and

jurisdiction? OPD 1 to 6;

6. Whether Defendant Nos. 1 to 6 have committed perjury as alleged in

preliminary objection no. 1 of the replication? If so, its effect. OPP;

7. Whether the written statement of Defendant Nos. 1 to 6 has been signed and

verified properly and by authorized and competent person? If not, to what

effect? OPD 1 to 6;

8. Whether defendant Delhi Development Authority has any connection with the

suit plots in view of the fact that possession of Khasra Nos. 2363 and 2364/2,

Basai Darapur Village, was not taken over by the LAC and in view of the fact

that acquisition proceedings under Award No. 1910 of 1966 in respect of

these Khasras were abandoned and withdrawn vide Govt. of India letter dated

16-2-1977 and the Saraswati Garden Colony was regularized vide MCD

Resolution No. 278 dated 1.9.1988. OPD-1;

9. Whether the plaintiffs are entitled to a decree for Rs. 24,08,990/- as damages?

OPP;

10. Whether the plaintiffs are entitled to pendente lite and future damages? If so,

how much. OPP;

11. Whether the plaintiffs are entitled to permanent injunction as prayed for;

CS (OS) No. 2091/1993 Page 6 of Page 23

12. Whether the plaintiffs are entitled to mandatory injunction against Defendant

No. 1 to 8 as prayed for. OPP;

13. Relief.

11. The court proposes to analyze the materials on record, and render findings on the above

issues, in the following part of the judgment.

Issue No. 3: Locus standi of the plaintiff to maintain the suit

12. This issue was presumably framed at the insistence of the defendants, when they had

filed the written statement. However, during hearing, they did not substantiate the objection as to

maintainability. The pleadings in the suit demonstrate that the plaintiffs are claiming ownership

of the suit lands, since 1966; the complaint filed by Defendant No. 6 also states that malba from

the suit plots was being removed. Moreover, the evidence on record disclosing prima facie

ownership, being PW-1/8 and PW-1/9 (dated 21-3-1966); mutation in the MCD records, Ex. PW

PW-1/10 and PW-1/11; judgment and decree dated 27-7-1992 (in Suit No 963/86), being Ex.

PW-1/12 and PW-1/13 clothes them with sufficient standing to maintain the suit. This issue, is

accordingly answered in favour of the plaintiffs, and against the defendants.

Issue No. 4 Is the suit not maintainable for non-joinder of necessary parties

13. Issue No. 4, like issue No. 3, assumes the role of a preliminary issue. It was struck at the

insistence of DDA, which contends in its written statement that the local Government, i.e. the

NCT of Delhi, and the Union of India are necessary parties. This issue was also pressed during

the hearing by the defendants. Here, it is urged that the land had to be acquired for the purpose of

planned development of Delhi; Section 15 of the Delhi Development Act, 1957 has been cited. It

CS (OS) No. 2091/1993 Page 7 of Page 23 is also argued that according to the decision reported as Om Prakash V. Union of India 1988 (1)

SCC 356, the Lt. Governor of Delhi can exercise the power to acquire lands, on behalf of the

Union Government. The absence of the Delhi Administration (now the National Capital

Territory - NCT - of Delhi) and the Union Government, urge the defendants, is therefore, fatal

to the proceeding.

14. The CPC mandates that every suit should, of necessity, implead all necessary parties.

Who are necessary, would depend on the facts of each case, having regard to the pleadings, and

the reliefs claimed. In Udit Narain Singh Malpaharia V. Addl. Member, Board of Revenue, Bihar

(AIR 1963 SC 786) the distinction between "necessary party" and "proper party" was explained

thus, by the Supreme Court:

"The law on the subject is well settled : it is enough if we state the principle. A necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding."

The above decision has been universally applied in several subsequent judgments. In U.

P. Awas Evam Vikas Parishad, Appellant V. Gyan Devi (Dead) By LRs 1995 (2) SCC 326, the

Supreme Court held that a local authority or public corporation has, under Section 50(2) of the

Land Acquisition Act, a right to be heard, and given notice, especially where the land acquired is

for a public purpose relatable to its actions or if it is the "requiring" agency.

15. In this case, DDA's objection is based on the award and the notification, said to be issued

under Section 22 of the Delhi Development Act. That provision enables the Central Government

to place at the disposal of DDA, land belonging to it - including that acquired by it. The

plaintiffs' position is that they are in possession of the lands, having purchased it in 1966; they

CS (OS) No. 2091/1993 Page 8 of Page 23 advert to the notification and the award, relied on by the DDA, but say that despite the award

having been made, possession of the land was never acquired by the Government or the statutory

authorities. Both parties rely on the same set of documents, in support of their respective cases.

16. One can understand a fact situation where the party who is asserting a set of facts is not in

complete possession of the materials, but relies on the acts of others. In such circumstances, it

can conceivably be said that the absence of that other would render the proceedings incomplete,

and the decision, not based on all facts. Here, however, the DDA claims entitlement to the suit

lands; it has placed on record the Award of the Land Acquisition Collector. That document

expressly states that land was sought to be acquired for planned development of Delhi; according

to DDA, the suit land was handed over to it in 1968. In the light of all these, it is evident that all

the necessary facts are within the knowledge of DDA; it was also the requiring public agency,

which asked for the acquisition of land at village Basai Darapur, where the suit plots are located.

In view of these facts, the court is of the opinion that the non-joinder of the other parties, named

by DDA is not fatal to the proceedings. The issue is accordingly answered against the

defendants, and in favour of the plaintiff.

Issue No. 5: Valuation of the suit for purposes of court fees and jurisdiction

17. The onus of proving this issue was upon the defendants, who had pleaded this as part of

their preliminary objections. Neither in the pleadings, nor the evidence, have they disclosed how

the suit has been improperly valued, or under-valued, for purposes of court fee and jurisdiction.

This issue, is therefore, answered in favour of the plaintiff and against the defendants.

Issue No. 1; Issue No. 2 & Issue No. 8: Whether the suit plots were acquired by Award No. 1910/66 and placed at disposal of DDA, through a valid notification; Whether suit lands were in possession of DDA at any point of time, and whether DDA maintained it as green belt at any point of time; and whether DDA has any CS (OS) No. 2091/1993 Page 9 of Page 23 connection with the suit lands, as possession of Khasra Nos. 2363 and 2364/2 Basai Darapur were not taken over and whether the acquisition in respect of these lands were abandoned, due to notification dated 16-2-1977, by Government of India and MCD resolution No. 278, dated 1-9-1988.

18. These three issues involve consideration of common questions of fact and law, which go

to the root of the Plaintiff's claim. On the one hand, the plaintiff asserts having acquired title to

the property in 1966, based on two sale deeds (Ex.PW-1/8 and Ex.PW-1/9). They also rely upon

the original sale deeds registered in favour of the vendees, Mr. K.G. Puri and Mr. V.M. Puri PW-

1/4 and PW-1/5 respectively. They contend that before 1965, Khasra No. 2364 was divided into

two parts, i.e. 2364/1 and 2364/2. According to them, Khasra No. 2364/2 alone was acquired

along with Khasra No. 2363 by the appropriate Government. It is further argued that acquisition

of these two parcels of land could not be completed and possession of the land was not taken, as

it was partly "built-up" i.e built upon. Reliance is placed on Ex.PW-1/32, possession proceedings

dated 24.12.1966; and its translation, Ex.PW-1/33. Plaintiffs further rely upon the Central

Government's order regularizing unauthorized colonies and the MCD's resolution dated

01.09.1978 (Ex.PW-1/97) giving effect to that position.

19. DDA and other contesting respondents contend that the suit plots were part of the land

acquired for planned development of Delhi. They rely on the award, namely; 1910/1996, which

mentions the list of lands acquired in Basai Darapur Village. This document specifically

mentions Khasra No. 2364/2 and also describes the various claims to compensation as well as the

amounts awarded. The DDA, in addition, also relies upon a notification dated 03.01.1968 where

the total extent of 1778-2 bighas, in various parts of Delhi, including Basai Darapur, were placed

at its disposal. That notification describes part of Khasra No. 2363, i.e. 5 bighas and 17 biswas

and 6 bigha, 8 biswas of Khasra No. 2364/2 being placed at the disposal of DDA.

CS (OS) No. 2091/1993 Page 10 of Page 23

20. The DDA contends that the suit plots and other lands were notified under Section 4 of the

Land Acquisition Act on 15.11.1959 and a declaration, under Section 6, was issued on

29.07.1963. These events were not denied by the plaintiffs. DDA further contends that plaintiffs

even failed to identify their land in their suit and correlate it with Khasra numbers. For this

purpose, DDA relies upon the deposition of PW-1 during cross-examination who states lack of

awareness as to exact location of plots B-8, B-9 and B-10 in the revenue records. It is contended

that at the time of possession proceedings in 24.12.1966, no doubt, the entire acquired land of

Khasra No. 2364/2 could not be taken-over by the appropriate Government. However, the award

dated 03.01.1968 discloses that the entire remaining portion of Khasra No. 2364/2 was its subject

matter. This, according to the DDA implies that vacant portion was taken possession of. In view

of the award of the notification dated 03.01.1968 being public document, the Court should take

judicial notice of it in preference to the plaintiff's claim.

21. The DDA has placed reliance upon the decision reported as Larsen & Toubro V. Gujarat

1998 (4) SCC 387 to say that in the absence of any notification under Section 48 withdrawing

from acquisition, the Courts cannot infer any abandonment or exclusion of the Government's

intention to acquire lands. Similarly, the decision reported as Municipal Committee of Bhatinda

vs. Land Acquisition Collector 1993 (3) SCC 24 has been relied on. It is contended that the

plaintiff cannot assert or claim any right to land even if it is not used for the purpose for which it

was acquired. In support of this contention, reliance is placed on the decision Northern India

Glass Industries vs. Jaswant Singh & Ors. 2003 (1) SCC 335.

22. DDA further relies upon decision reported as Yadunandan Garg vs. State of Punjab 1996

(1) SCC 335 to say that property purchased and constructions on land after its acquisition under

the Act, cannot be said to bind the State or clothe the occupier with any entitlement against the

CS (OS) No. 2091/1993 Page 11 of Page 23 State. Similarly, the DDA argues that injunction cannot be issued against the owner and in

favour of a trespasser gaining unlawful possession, pressing into service Premjee Ratanse Sah

vs. Union of India 1994 (5) SCC 547.

23. Before discussing the rival contentions on the three issues, it would be necessary to

extract Section 16 of the Land Acquisition Act, which reads as follows:

"POWER TO TAKE POSSESSION- When the Collector has made an award under Section 11, he may take possession of the land which shall thereupon vest absolutely in the Government free from all encumbrances."

Section 22 of the Delhi Development Act states as under:

"Section 22 Nazul Lands:

(1) The Central Government may, by notification in the official Gazette and upon such terms and conditions as may be agreed upon between that Government and the Authority, place at the disposal of the Authority all or any developed or undeveloped lands in Delhi vested in the Union (hereinafter referred to as nazul lands) for the purpose of development in accordance with the provisions of this Act.

(2) After any such nazul land has been developed by, or under the control and supervision of the Authority it shall be dealt with by the Authority in accordance with the rules made, the directions given by the Central Government in this behalf."

24. Ex.PW-3/1 is a map disclosing the location of the two plots in perspective to the entire

lay-out. This was filed in the list of documents, along with the suit. The plots are adjacent to each

other and form a corner block. B-9 abuts a 30-metre wide road on one side, B-10 is located on its

other side. Both plots face 60-metre wide road and a 15-metre wide road is located at their back.

This is corroborated by the photographs, placed on the record. Photographs, Ex.PW-1/18 and

CS (OS) No. 2091/1993 Page 12 of Page 23 Ex.PW-1/23, were taken before the boundary walls were permitted to be constructed under

interim orders of the Court. Ex.PW-1/39 is a translated copy of the demarcation proceedings

dated 19.07.1987. It records details of the land and surrounding areas in Saraswati Garden.

According to these documents, the two plots, B-9 and B-10 fell in Khasra No. 2364/2 and not

2464/1. It further states that as per municipal records, these lands were to be developed as "tot

lots."

25. Ex.PW-1/34 is a certified copy of the order sheet dated 01.06.1987. It contains the order

of Court which states that the case was fixed that day for the reply of DDA to the interrogatories

delivered by the plaintiffs, (i.e. Defendant No.9 in this case). The counsel for DDA submitted

that he was instructed to make a statement. Mr. S.J. Lamba, Assistant Settlement Officer, West

Zone, DDA was present for that purpose. His statement was recorded. The statement reads as

follows:

"All the interrogatories called for are matter of record, for which the necessary documents have been filed. However, it is admitted that as per record the possession of khasra no. 2364/2 of Village Basai Darapur, has not been taken over by LAC. (Land Acquisition Collector) but the DDA required the land for planned development of Delhi."

26. Ex.PW-1/97 is a copy of the resolution No. 278 of the Standing Committee of MCD

dated 04.01.1978. It sought to regularize the Saraswati Garden Extension Part-I and II; it adverts

to the Commissioner's letter dated 31.05.1978. It provided a plan, which covered 129 plots

measuring 5.83 acres. The scheme of regularization was pursuant to the orders of the Ministry of

Works and Housing of the Central Government dated 16.02.1977.

27. DW-1, in his affidavit evidence on behalf of DDA stated that the disputed land falls in

Khasra No.2364 but had not been transferred due to some stay order and existing built-up

CS (OS) No. 2091/1993 Page 13 of Page 23 structure according to proceedings dated 24.12.1966. He also stated that it was placed at the

disposal of DDA by notification dated 03.01.1968 and further deposed that "there was then no

need for recording formal possession proceedings." The plaintiffs's cross-examination of this

aspect was objected to on behalf of the DDA.

28. The award, i.e. Ex.PW-1/D-1 interalia states as follows:

"As the possession of the land has not been taken by the acquiring department, the owners and interested persons are not entitled to any interest................................

Some of the interested persons have constructed structures in Khasra No.2363 and 2364 but their names do not stand in the revenue records. The compensation of land of these Khasra Nos. will remain in dispute and shall be referred to the competent Court if the parties do not come to any amicable settlement...................

The land aforesaid will vest absolutely in the Government free from all encumbrances from the date of taking-over of possession."

The most important document, i.e. possession proceedings dated 24.12.1966 adverted to

by DDA in the affidavit filed on its behalf is part of the record. Its translation has been produced

as Ex.PW-1/33. It records as follows:-

"The possession of land measuring 3 bigha 1 biswa of Khasra 1347, 3 bigha 3 biswa of Khasra No.1349 and 3 bigha 3 biswa Khasra 1353 in which 1 Kachha room 10 ft.x10 ft. area lying vacant was taken-over and handed-over to Sh. Pratap Singh, Naib Tehsildar, L&B. The possession of Khasra No.2363 and 2364/2 was not taken-over as there were constructed houses at the site and there were stay also."

29. It is thus clear from the above analysis that Khasra No. 2364/1, though initially notified,

was later excluded from acquisition; it was not even a subject matter of award. It has also been

proved that the suit lands fall in Khasra No. 2364/2. The award mentions that award assesses the

extent of over 6 bighas of Khasra No. 2364/2, to compensation. The resolution (Ex.PW-1/97)

CS (OS) No. 2091/1993 Page 14 of Page 23 also corroborates this aspect so far as the extent of acquisition is concerned. Ex.PW-1/34, a very

crucial document, records the statement of the concerned official of DDA, i.e. Assistant

Settlement Officer. He categorically deposed in Court that possession of Khasra No. 2364/2 had

not been obtained. Even DDA's witness - i.e. PW-1, the Director (Land Management), deposed,

stating that the lands were not transferred to DDA due to some stay order and built-up structure

as per possession proceedings dated 24.12.1966. He further argumentatively stated that there was

no need for recording formal possession proceedings. The orders of Central Government dated

16.02.1977 and MCD resolution of 01.09.1978 show that the entire area was sought to be

regularized. It is, therefore, held that the suit lands were part of acquisition, assessed to

compensation but possession was never taken-over and though Khasra No. 2364/2 finds mention

in the notification dated 03.01.1968, there is no evidence or material to establish that it was

actually handed-over.

That brings discussion to the crucial legal position. In the decision reported as Special

Land Acquisition Officer v. Godrej and Boyce, (1988) 1 SCC 50, it was held that Section 16

makes it clear beyond doubt that the title of the land vests in the Government only when

possession is taken by the Government. Till that point of time, the land continues to be with the

original owner and he is also free to deal with the land just as he likes. The court held that:

"Under the scheme of the Act, neither the notification under Section 4 nor the declaration under Section 6 nor the notice under Section 9 is sufficient to divest the original owner of, or other person interested in, the land of his rights therein.

Section 16 makes it clear beyond doubt that the title to the land vests in the government only when possession is taken by the government. Till that point of time, the land continues to be with the original owner and he is also free (except where there is specific legislation to the contrary) to deal with the land just as he likes, although it may be that on account of the pendency of proceedings for acquisition intending purchasers may be chary of coming near the land. So long as possession is not taken over, the mere fact of a notification under Section 4 or declaration under Section 6 having been made does not divest the owner of his

CS (OS) No. 2091/1993 Page 15 of Page 23 rights in respect of the land or relieve him of the duty to take care of the land and protect it against encroachments. Again, such a notification does not either confer on the State Government any right to interfere with the ownership or other rights in the land or impose on it any duty to remove encroachments therefrom or in any other way safeguard the interests of the original owner of the land."

30. As to what is meant by "possession" was explained quite clearly by a bench of three

Judges of the Supreme Court in Balwant Narayan Bhagde v. M.D. Bhagwat, (1976) 1 SCC 700,

in the following manner:-

"In a proceeding under the Act for acquisition of land all interests are wiped out. Actual possession of the land became necessary for its use for the public purpose for which it has been acquired. Therefore, the taking of possession under the Act cannot be "symbolical" in the sense as generally understood in Civil Law. Surely it cannot be a possession merely on paper. What is required under the Act is the taking of actual possession on the spot. In the eye of law the taking of possession will have the effect of transferring possession from the owner or the occupant of the land to the Government.

The concurring judgment of two Judges stated that:

"We think it is enough to state that when the Government proceeds to take possession of the land acquired by it under the Land Acquisition Act, 1894, it must take actual possession of the land, since all interests in the land are sought to be acquired by it. There can be no question of taking "symbolical" possession in the sense understood by judicial decisions under the Code of Civil Procedure. Nor would possession merely on paper be enough. What the Act contemplates as a necessary condition of vesting of the land in the Government is the taking of actual possession of the land. How such possession may be taken would depend on the nature of the land. Such possession would have to be taken as the nature of the land admits of."

31. From the above documents and the testimony of DW-1 it is established that possession of

the entire Khasra No.2364/2 was not taken-over. It is a matter of record that the two suit plots B-

9 and B-10 are part of that Khasra No. 2364/2. Therefore, even though Khasra No.2364/2 was

part of the land acquisition proceedings which culminated in the award and is shown in the

CS (OS) No. 2091/1993 Page 16 of Page 23 notification dated 03.01.1968, it is held that title was never divested in terms of Section 16 of the

Land Acquisition Act. Here, it may be noticed that even though Section 22 (of the Delhi

Development Act) empowers the Central Government to place nazul lands at the disposal of the

DDA, it does not supersede or override the provisions of the Land Acquisition Act. In fact, the

reading of Section 15 of the Delhi Development Act would show that the mechanism provided

for under the Land Acquisition Act would apply for acquisition and use of eminent domain

powers. Therefore, the DDA cannot succeed in its contention that the notification under Section

22 of the Delhi Development Act had the effect of "deeming" possession. If it wanted to assert

title over land, it should have placed the relevant materials on record and proved that after

24.12.1966, possession of the entire Khasra No.2364/2 was taken over and, therefore, the

notification dated 03.01.1968 placed such entire land at its disposal. It has not chosen to produce

any such documentary evidence. If it were indeed in possession as is asserted, no proof or

material, disclosing how the suit lands were maintained, the expenses defrayed for the purposes,

the employees posted for the upkeep, etc have not been shown. On the other hand, the plaintiffs

have been able to show that the two plots were acquired by them in 1966 from the vendees of

Mr. Madan Lal Khanna, i.e. V.M. Puri and K.G. Puri and that possession was never taken over

pursuant to land acquisition proceedings. The Court, therefore, answers issue nos. 1, 2 and 8 in

favour of the plaintiffs and against the defendants.

Issue nos. 11 and 12-Entitlement of the Plaintiffs to injunctive relief in terms of the suit.

32. DDA contends that plaintiffs are disentitled to any relief because pursuant to land

acquisition proceedings, no title could have passed in their favour. It is also denied that

injunction against the State cannot be issued, which is a true owner; and that it is also argued that

CS (OS) No. 2091/1993 Page 17 of Page 23 there is no question of any lapse or abandonment of acquisition proceedings. Larsen & Toubro

vs. Gujarat (supra); Municipal Committee of Bhatinda vs. Land Acquisition Collector (supra);

Yadunandan Garg vs. State of Punjab (supra) and Premjee Ratanse Sah (supra) have been cited

in support of these contentions.

33. The plaintiffs, on the other hand, rely upon the fact that possession of land was never

taken in terms of Section 16 and, therefore, title could not have passed in favour of the

appropriate Government or the DDA. They also contend that there is ample material in the form

of complaints made by defendants, being Ex.PW-1/65 that an obstruction was created to the

plaintiff's lawful enjoyment of the property.

34. Larsen & Toubro vs. Gujarat (supra) cited on behalf of the defendant, no doubt, is an

authority that there is no deemed withdrawal from acquisition proceedings and that a notification

in that regard has to be specifically published by positive act. Similarly, Municipal Committee of

Bhatinda vs. Land Acquisition Collector (supra) is also an authority that acquisition proceedings

cannot be deemed abandoned drawn up on the ground that the preliminary notification or the

declaration under Section 6 are deemed to have lapsed. Northern India Glass Industries vs.

Jaswant Singh & Ors. (supra) is an authority for the proposition that there can be change of

public purpose in which event the land owner is not clothed with any authority to question the

State's action.

35. However, none of the authorities cited by the defendants or DDA was concerned with the

fact situation where the ownership of land never vested with the State due to Section 16. Both the

Municipal Committee of Bhatinda vs. Land Acquisition Collector (supra) and Larsen & Toubro

vs. Gujarat (supra) were in the context of contentions urged about deemed abandonment or

implicit withdrawal. However, no such argument is made here. What is contended by the

CS (OS) No. 2091/1993 Page 18 of Page 23 plaintiff, however, is that State never really secured title and secondly that the entirety of the area

was regularized on account of built-up structure. Yadunandan Garg (supra) was a case where the

Court held that transfer of property by the land owner after publication of the notification did not

enable the vendee to claim against the State and that such transfer could not clothe the transferee

with title. No doubt, the authority appears facially, to support the DDA's position to a certain

extent. However, a careful reading of the decision would show that the effect of the law declared

in 1975 and 1987 by the Supreme Court supra has not been discussed. Furthermore, the Supreme

Court did not consider the impact of Section 16, Land Acquisition Act, which is categorical in

declaring that title would vest in favour of the State only upon possession being taken-over.

36. There is no doubt about the legal proposition that injunction can be issued against the

entire world, except the true owner of the land. However, ownership, which flows out of title,

here has not been established by the DDA. Therefore, the evidence of the plaintiffs about

possession, by Ex.PW-1/10 and Ex.PW-1/11 (showing mutation in the MCD records) and the

judgment and decree dated 27.07.1992 and Ex.PW-1/12 and Ex.PW-1/13 and photographs,

Ex.PW-1/18, Ex.PW-1/23 remains unchallenged. In such circumstances the person in possession

is entitled to protect it. Thus, in Rame Gowda v. M. Varadappa Naidu,(2004) 1 SCC 769, a three

judge Bench of the Supreme Court held that:

"It is thus clear that so far as the Indian law is concerned, the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking the law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior CS (OS) No. 2091/1993 Page 19 of Page 23 possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner."

In view of above discussion, it is held that the plaintiffs are entitled to reliefs of permanent and

mandatory injunction sought for.

Issue no.9 - Plaintiffs' entitlement to decree for Rs.24,88,990/- as damages

37. The plaintiff's claim for Rs.66,500/- per month is premised on his damages from 1990 for

depriving use and enjoyment of their property. In addition, they claim Rs.19,900/- for the

construction of boundary wall which was demolished and further Rs.75,000/-, said to have been

spent on unnecessary litigation. The plaintiffs rely upon Ex.PW-1/8 and Ex.PW-1/9, the

registered sale deeds dated 21.03.1966 and mutation in the MCD records Ex.PW-1/10 and

Ex.PW-1/11. Besides, they also rely on the judgment and decree dated 27.07.1992 and Ex.PW-

1/12 and Ex.PW-1/13 and photographs, Ex.PW-1/18, Ex.PW-1/23. The complaint, Ex.PW-1/65

has also been produced.

38. According to the plaintiffs, the filing of frivolous suit, i.e. Suit 703/85 held up their

legitimate right to construct upon the plot. They also rely upon the judgment and decree in their

favour, whereby their rights as against defendants 9-11 were conclusively established. The

contention is that a collusive injunction order dated 09.06.1984 was obtained which effectively

prevented any building or construction activity. The plaintiffs have, furthermore, relied upon

CS (OS) No. 2091/1993 Page 20 of Page 23 statements made in several proceedings and interlocutory applications, in Suit No.703/85, by

defendants 9-11.

39. The plaintiff's claim for damages may be noticed, spans a period of 9 years, i.e. between

1984 and 1993; however, the relief claimed is limited to three years' from the date of filing the

suit. This claim is not based upon any contract; rather it is premised on wrongful behavior of the

defendants 9-11 in dragging them through unnecessary and frivolous litigation. The plaintiffs do

not explain how such a money claim at Rs.66,500/- per month is tenable, in the form it is

brought.

40. The plaintiffs have stated that the minimum market price of the plot was Rs.45 lakhs

upon which the damages were calculated at 18% per annum; the same works out to Rs.7,98,000/-

per annum or Rs.23,94,000/- in aggregate. The plaintiffs have not produced any documentary

evidence in the form of certified copies of sale deeds or similar materials to establish the veracity

of the valuation (of Rs.45 lakhs) urged by them. A general affidavit about valuation of the plot

and the probable rents etc. have been relied upon; in addition, reliance is placed upon the

affidavit of PW-4, Mr. M.R. Goyal, who states that the market rates of plots in Saraswati Garden

was minimum Rs.10,000/- per sq. yard. Ex.PW-4/1 is a copy of a lease deed dated 05.07.2002,

whereby A-41, Saraswati Garden was sought to be leased-out to Telecom Regulatory Authority

for a monthly rent of Rs.10,000/- for 11 months. The property was approximately 1680 sq. ft.

41. While there can be no doubt that the plaintiffs were prevented from use of the property

which had been mutated in favour of Mr. Madan Lal Khanna and subsequently, in their favour,

on account of a injunction order that subsisted for a long period, at the behest of defendants 9-11

that by itself does not entitle them to claim for Rs.66,500/- per month for 3 years as sought by

CS (OS) No. 2091/1993 Page 21 of Page 23 them in the Suit. Of that, they have been able to show by way of objective material - apart from

the affidavit of PW-1 - is a copy of lease deed for renting out of an adjacent built-up property at

Rs.10,000/- per month. That lease deed (Ex.PW-4/1) mentions fixing of rent at Rs.10,000/- per

month for 11 months. The built-up area is 1680 sq. ft. in these premises. Analogically, the

plaintiff's claim - for the two plots B-9 and B-10 on a parity of receiving Rs.10,000/- per month

would be Rs.7.2 lakhs as total damages. The defendants 9-11 are ex-parte and have not put in

appearance in present suit since 1994. In the circumstances, it is held that the plaintiffs are

entitled to a decree of damages to the extent of Rs.7,20,000/- as against their claim for damages

at Rs.24,88,990/-. This issue is accordingly answered in their favour to that extent.

42. Issue No. 6 is whether action for alleged perjury should be taken against the Defendant

Nos. 1 to 6, in view of averments made in the written statements. This was struck in view of the

extract of the notification dated 3-1-1968, which contained a reference to the year 1972.

However, in view of the circumstance that a detailed certified copy of the notification was placed

on the record, the court is of opinion that a prima facie case for action is not made out. As

regards issue No. 7, this concerned the standing and authorization of the person signing and

verifying the written statement. No doubt, DW-1 was not able to establish that the person signing

the written statement had the requisite authority. However, the court is, on this issue, of the

opinion, that the defense of DDA has not been disclaimed by it, in the proceeding. Consequently,

the issue is answered in favour of Defendant Nos. 1 to 6.

Issue No. 10: Pendente lite and future damages

CS (OS) No. 2091/1993 Page 22 of Page 23

43. The plaintiffs rely on the testimony in affidavit, supporting the plea that the damages

work out to Rs. 66, 500/- per month. As discussed in a previous part of the judgment, no

evidence about the land value was adduced; the plaintiff could have produced the notifications of

statutory agencies such as the Municipal Corporation of Delhi or the Govt. of NCT, indicating

circle rates for the area. No valuer's report, or any other objective material has been placed on

record. In these circumstances, the claim for pendente lite and future damages cannot be granted.

The issue is accordingly decided against the plaintiff.

Issue No. 13: Relief

44. In view of the above discussion, it is held that the plaintiffs are entitled to the reliefs of

injunction and damages, to the extent of Rs. 7,20,000/-. Accordingly, the suit is decreed in terms

of relief clause, Para 35 (c) and (d) so far as claims for permanent and mandatory injunctions are

concerned. A decree for Rs.7,20,000/- is passed against Defendants 9 to 11. In the circumstances,

the costs shall be borne by the Defendants 9 to 11. Counsel's fee is taxed at Rs. 35,000/-.

January 16, 2009                                             (S. RAVINDRA BHAT)
                                                                    JUDGE




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