Delhi High Court
Tek Chand (Since Deceased) ... vs Delhi Development Authority on 25 November, 2010
Author: Indermeet Kaur
R-101
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 25.11.2010
+ RSA No.45/2002 & C.M.Nos.132/2002 & 215/2002
TEK CHAND (since deceased)
THROUGH HIS L.R.
...........Appellant
Through: Mr.R.K.Bindal, Advocate.
Versus
DELHI DEVELOPMENT AUTHORITY ..........Respondent
Through: Mr.Rajesh Manchanda,
Advocate.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1. This appeal has impugned the judgment and decree dated
4.3.2002 which had endorsed the finding of the trial court dated
23.1.1990 thereby dismissing the suit of the plaintiff Tek Chand.
Appellant before this court is the plaintiff Tek Chand. He is stated
to be the owner of land comprised of 9 bighas and 7 biswas in
Khasra No.174, Village Naharpur, Delhi. It is stated that out of this
aforesaid land 9 bighas and 4 biswas had been acquired but the
balance 3 biswas had been left out as the same was built up.
Government had not taken possession of the aforesaid 3 biswas of
land. The plaintiff is living in this suit property and he has been
assessed to property tax. He also has a water connection. On
15.4.1987, the officials of the Delhi Development Authority (DDA)
had threatened to demolish his house. The action of the defendant
was illegal. No notice of demolition had ever been served upon the
plaintiff. He was constrained to file the present suit for injunction
seeking a restraint against defendant from interfering with the
peaceful possession of his property.
2. The defendant in its written statement stated that whole of
the land stood acquired vide Award no.35/78-79. Out of this land, 9
bighas and 4 biswas had been taken possession of and placed at
the disposal of the DDA. Remaining 3 biswas could not be taken
over as a grave (samadhi) existed there. Plaintiff has no right, title
or interest in the suit property. The show cause notice and
demolition order under Section 30 of the Delhi Development Act,
1957 (hereinafter referred to as „the said Act‟) had been duly
served upon the plaintiff; a person aggrieved by such an action can
file an appeal before the Appellate Tribunal; suit was not
maintainable.
3. Trial judge framed the following five issues:
1. Whether the threatened action of the deft. is ultra-vires
and without jurisdiction? OPD
2. Whether the jurisdiction of this court is barred u/s 30 of
the D.D.Act? OPD
3. Whether the pltf. has got any locus standi to file the
present suit? OPP
4. Whether the pltf. is entitled to the relief claimed for?
5. Relief.
On the basis of the oral and documentary evidence adduced
by the respective parties, it was held that the show cause notice
and the demolition order were duly served upon the plaintiff. The
show cause notice was proved as Ex.DW2/2. Report of the process
server Ex.DW2/3 reported that the plaintiff had refused service.
Demolition order is Ex.DW2/4; the demolition notice was proved as
Ex.DW2/5 served upon the plaintiff and received by one Ramu on
behalf of the owner. Both the courts below had noted that no
suggestion had been given to DW2 in his cross examination that
this notice was not served upon the owner in the aforenoted
manner. Further the trial court was of the view that the demolition
order could only be challenged under Section 31-E of the said Act
before the Appellate Tribunal; jurisdiction of the civil court was
barred.
4. This finding of the trial judge was endorsed by the Appellate
Court.
5. This is a second appeal. It was admitted on 12.7.2002 and
following substantial questions of law have been formulated which
inter alia read as under:
"The points which are to be considered relate to is the
question of jurisdiction, of the Civil Court to dismiss the
suit on the ground that there is an Appellate Tribunal for
the purpose of consideration and the other question relate
to authority of the DDA to interfere with the construction,
by issuing notice to demolish etc."
6. Counsel for the appellant has vehemently urged that the
Award Ex.DW1/1 shows that 3 biswas of land had been left out
from acquisition and in fact this has also been admitted by the
defendant in his written statement. The contention of the plaintiff
all-along has been that he had not received either the show cause
notice or the demolition order.
7. Arguments have been countered. Learned counsel for the
respondent has placed reliance upon the judgment of this court
reported in 2001 III AD (Delhi) 911 Prabhu Dayal vs. M.C.D. & Anr.
to support his submission that the remedy available to a party
against the demolition order is to go to the appropriate forum
which is the Appellate Tribunal and not to file a suit.
8. The demolition order in the instant case was passed under
Section 30 of the said Act. Both the fact finding courts have held
that the show cause notice and the demolition order had been duly
served upon the appellant/plaintiff. These were concurrent and
clear findings. This court is not a third fact finding court. It cannot
interfere with the findings of fact unless they are perverse. No
such perversity has been pointed out.
9. The demolition order having been served upon the appellant,
the only remedy available to the said party was to challenge this
demolition order before the Appellate Authority; jurisdiction of the
civil court was barred. This is clear from the provisions of Section
31-C, 31-D and 31-E of the said Act. The judgment relied upon by
the learned counsel for the respondent also squarely covers this
case. Suit of the plaintiff was rightly dismissed. The person
aggrieved by such a demolition order can take recourse to the
Appellate Tribunal; the arguments urged before this court could
very well have been advanced before the Appellate forum.
10. There is no merit in the appeal. Appeal as also the pending
applications are dismissed.
INDERMEET KAUR, J.
NOVEMBER 25, 2010
rb
