K.L.Sachdeva vs M.C.D
2013 Latest Caselaw 1922 Del

*      THE HIGH COURT OF DELHI AT NEW DELHI

+                  CS(OS) 1797/2003, IA 69/2012

                                         Date of Decision: 29.04.2013

K.L.SACHDEVA                                               ..... Plaintiff

                          Through:     Mr. Anil Grover with Ms
                                       Noopur Singhal, Adv. for the
                                       plaintiff.

                          Versus

M.C.D                     D+                            ..... Defendant

                          Through:     Mr Rahul Srivastava for Ms
                                       Suparna Srivastava, Adv. for
                                       defendant MCD.
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J.

1. This is a suit for declaration, injunction and damages. It was

initially filed against the Municipal Corporation of Delhi (MCD).

Subsequently, vide order dated 02.08.2006, the Janak Park Plot

Holders Welfare Society (Regd.) was impleaded as "Defendant No. 2"

(hereinafter referred to as the "Society"). The plaintiff is stated to be

owner in possession of house No. WZ 406/R, Janak Park, Hari Nagar,

Clock Tower, situated over plot No. 43 out of Khasra No. 1496,

Village Tihar, New Delhi. Land of the said plot is stated to be

admeasuring 427.5 square yards. He stated to have purchased this land

vide registered conveyance deed dated 28.03.1963 executed by

Assistant Settlement Commissioner, Ministry of Rehabilitation, Govt.

of India. His case is that he raised pucca construction on 220 square

yards and thereafter built two rooms on additional area of 100 square

yards and left vacant remaining area of 107.5 square yards. A Civil

Suit for permanent injunction being suit No. 278/1995 was filed by

him against one Anil Maria in Civil Court in respect of the vacant area

of 107.5 square yards. In the said suit, on 21.07.1995, the Civil Judge

passed order of status quo in respect of the said portion of 107.5 square

yards. It is alleged that the Society, the defendant No. 2, herein, filed a

civil suit against him, being Suit No. 430/1998, alleging him to be

trying to encroach upon the areas of plot No.44 & 45 earmarked as

public parks. The MCD was also one of the defendants in the said suit.

In the said suit, the MCD had stated to be having no concern with the

suit land as it was the Ministry of Rehabilitation, Govt. of India which

was the custodian of the said land. In the said case, an application

under Order 39 Rule 1 and 2 CPC was filed by the plaintiff therein

(Society), which came to be disposed vide order dated 29.07.2002

restraining the plaintiff herein from raising any illegal construction on

the plots bearing No 44 and 45 of Khasra No. 1496. The plaintiff

carried the matter in appeal which was dismissed by the learned ADJ

vide order dated 23.05.2003. During the pendency of the said suit No.

430/1998, the society (defendant No.2) filed another suit being suit No.

707/2002 against the plaintiff. All the three suits, noted above, are

stated to be pending.

2. The cause of action for filing of the instant suit, as averred by

the plaintiff, is that after the dismissal of his appeal on 23.05.2003 by

the learned ADJ, the MCD officials demolished a portion of the suit

premises on 16.09.2003 and thereafter the Horticulture Department

started digging the trenches therein. The plaintiff has sought

declaration that he is the owner in possession of the suit premises i.e.

House No. WZ-406/R, situated in plot No. 43 admeasuring 427.5

square yards out of khasra No. 1496, Village Tihar and has also sought

injunction against the defendants from dispossessing him from the suit

premises or any part thereof. He has also claimed damages of Rs.2.00

lakh on account of demolition carried by defendant No. 1 MCD.

3. The common case as set up by both the defendants in their

written statements is that plaintiff is, in fact, owner of plot No. 43,

admeasuring 220 square yards in Khasra No. 1496, village Tihar and

has encroached upon the adjacent plots No. 44 and 45 which are

earmarked as public park as per the plan regularized by the MCD in

1962 and as also shown in modified regularized plans of Janak Park

dated 16.01.1982. The background facts of the colony of Janak Park

are stated that it came into existence in 1958 and the plaintiff had

purchased the plot No.43 measuring 220 square yards in 1958. Each

plot in the colony was of the area of 200 square yards excepting the

corner plots which were of 220 square yards. It is stated by defendant

MCD that earmarking of the lands for roads and parks was mandatory

for regularization of plans and that the plots No. 44 and 45 were

earmarked for public park, but, the plaintiff taking advantage of his

plot being adjacent, encroached upon these plots. The MCD also

stated that it was not a party in the civil suit No. 278/1995, filed by the

plaintiff against Anil Maria and that with regard to the stand taken by

the MCD in the suit No. 430/1998 that it had no concern with the suit

lands, an inquiry was ordered by the Commissioner. The MCD also

submitted that the demolition was carried on the plots No. 44 and 45 of

Khasra No. 1496 which were earmarked as park and no demolition was

carried on any portion of the building on plot No. 43 of the plaintiff

and thus there is no question of any damages suffered by the plaintiff.

4. The defendant No. 2 Society corroborating the averments of

defendant No. 1 MCD, also further stated that initially one Keshav Das

Sahani had carved out this colony of Janak Park in 1957 claiming

himself to be the owner of the lands of Khasra No.1495, 1496 and

1499 of Village Tihar and he started selling the plots to different

persons, some of whom were refugees. Later on it came to be known

that he was not the owner of the lands and an FIR was lodged against

him on 23.09.1959. The plaintiff had also purchased plot No. 43 from

Mr. Keshav Das Sahani. When the lands of these khasras were put to

auction by the Settlement Commissioner, Mr. Keshav Das Sahani was

made to participate in the auction and got the bid for Khasra No. 1495,

1496 and 1499, village Tihar and deposited 10% of the bid amount.

He, however, failed to deposit the balance. And that is how the

defendant No. 2 Society came in direct correspondence with the

Settlement Commissioner. It is averred that subsequently society gave

a representation to the Government with the details of the purchasers as

also the areas in their actual possession. The statement prepared by the

Society also showed the areas of the plots in occupation of purchasers,

the shares of the plot holders to the common areas for roads and parks

and the total area of each plot holder. It is averred that for calculation

of above areas, the same development plan was followed upon which

Mr. Sahani sold in 1958-59 and as per the regularization plan approved

by defendant MCD subsequently. It is averred that the plaintiff, like

others, had purchased the plot of the size of 220 square yards and 147.5

square yards was his share towards road and 60 square yards towards

park and, thus, in this way his area was shown as 427.5 square yards.

It is stated that in the conveyance deed as executed by the Settlement

Commissioner, the said practice was followed to all the individuals

who purchased plots in these khasra numbers strictly as per the list of

defendant No. 2 Society. It was essential as the whole auction price of

lands of these Khasras was to be paid due to non-payment of balance

by Mr. Sahani and also because the possession and title of the persons

was to be validated. This unauthorized colony was regularized by the

MCD on 23.03.1962 as per the site plan submitted by the defendant

No. 2 Society.

5. It is the defendant's further case that the plaintiff has been in

different positions in the management committee of defendant No. 2,

Society since its inception till 1987 and he is well aware of all these

facts, but has suppressed and concealed the facts and has not come to

the Court with clean hands. The defendant Society stated that the

plaintiff was in possession of Plot No. 43 measuring 220 square yards

since 1958-59 and has been paying municipal tax upon his declaring of

this plot measuring 220 square yards and having come into possession

thereof after purchase from Keshav Das Sahani. It is denied that the

plaintiff came into possession of this plot from the date of the

conveyance deed as executed by the Settlement Commissioner in July

1963.

6. The suit that was filed by the plaintiff against Maria is alleged to

be collusive. It is alleged that it was only on 24.05.1998 that the

plaintiff started raising construction on the land measuring 107.5

square yards meant for park, and which forced the defendant No. 2

Society to file suit No. 430/1998 against the plaintiff. Further, it is also

averred that relief of declaration sought is not maintainable and was

time barred inasmuch as defendant No. 2 Society had filed suit No.

430/1998 against the plaintiff in 1998 challenging his right in plots No.

44 and 45 and thus cause of action, if any, for seeking declaration, had

arisen in 1998. Further the suit is also stated to be not properly valued

as per the market value of the land which was Rs.40,000/- per square

yards and thus it was liable to be rejected under Order 7 Rule 11 CPC.

7. The plaintiff filed replications to the written statements of the

defendants and reiterated what was stated in the plaint. On the

pleadings of the parties, the following issues were framed:

(i) Whether the plaintiff is owner and in possession of the

suit property i.e. WZ 406/R, Janak Park, Hari Nagar,

Clock Tower, situated over plot No. 43 out of Khasra No.

1496, Village Tihar, admeasuring 427.5 sq yards, as

shown in red colour in the site plan? OPP.

(ii) Whether the plaintiff is entitled for a decree of permanent

injunction as prayed? OPP.

(iii) Whether the plaintiff is entitled to a decree of recovery for

a sum of Rs.2,00,000/- on account of damages suffered by

him? OPP.

(iv) Whether plaintiff was an encroacher of public land and

raised illegal construction on the plot (nos. 44 and 45)

which is meant for a public park? OPD 1 & 2.

(v) Whether the suit is barred by the provision of DMC Act,

1957 for want of service of mandatory notice upon

defendant No. 1? OPD-1.

(vi) Whether the written statement filed by defendant No. 2

has been signed and verified by the competent persons?

OPD-2.

(vii) Whether the declaratory relief claimed by the plaintiff is

barred by limitation OPD-2

(viii) Whether the suit of plaintiff has not been properly valued?

OPD-2.

(ix) Whether the regularization plan which has been stated in

para no. 1 of the preliminary objections of written

statement filed by the defendant No. 1 was implemented.

If so, its effect? OPD-1.

(x) Relief.

The plaintiff examined himself as only witness as PW-1. The

defendant MCD examined its officer B.P. Sharma as the only witness

as DW-1.

There was no assistance rendered by the defendants or their

counsel. The learned counsel appearing for the defendant MCD did

appear at the time of final hearing, but, did not make any submission.

Despite that he was permitted to file written synopsis, even the same

has not been filed. The conduct of MCD in conducting the case before

the Civil Judge made the learned Judge to direct inquiry by

Commissioner. Even in the instant case, the conduct of the MCD was

specifically noted by this Court on 02.08.2006 when cost of

Rs.50,000/- was imposed on the defendant MCD and filing of personal

affidavit of the Commissioner was ordered.

However, I have heard the learned counsel for the plaintiff and

perused the records.

My findings on the issues are thus:

Issues No. 1, 2 and 3.

8. There is no dispute that the plaintiff was the owner in possession

of the property bearing municipal No. WZ-406/R, Janak Park, Hari

Nagar which was on Plot No. 43 of Khasra No. 1496, Village Tihar.

According to the plaintiff he had purchased this plot from the

Settlement Commissioner by way of a registered conveyance deed

dated 28.03.1963. There cannot be dispute as regard to the conveyance

deed that it was in respect of plot No. 43 of Khasra No. 1496 and

measured 427.5 square yards. However, that is vehemently disputed

by the defendants. Their case is that the plaintiff had purchased plot

No. 43 out of Khasra No. 1496 from Keshav Das Sahani like others

and that all the plots in that area were of 200 square yards excepting

the corner ones which were 220 square yards. It is explained by the

defendant Society that since Mr. Sahani was not the owner of the land,

an FIR was registered against him and thereafter he gave a bid of the

lands to the Settlement Commissioner, but, ultimately he defaulted and

that is how the land was purchased by the individuals who were in

possession of those plots by making payments to the Settlement

Commissioner. It was stated that like all others, this plot No. 43, when

acquired by the plaintiff, measured 427.5 square yards and that is how

the size of this plot was mentioned in the conveyance deed. It was

stated that the entire lands of the Khasra were to be purchased from the

Settlement Commissioner, but, before the execution of the conveyance

deed, the MCD had made regularized plans of the colony in the year

1962 and mandatorily earmarked some portions of those plots for the

roads and the parks. It was in this way, that the plot bearing No. 43

was shown as admeasuring 427.5 square yards in the conveyance deed,

but in fact, as per the regularized plan of MCD, it was a corner plot

admeasuring 220 square yards. The remaining part of this land out of

427.5 square yards, was stated to be forming part of plot No. 44 and 45

which were earmarked for public parks.

9. In the statement made by the defendant No. 2 Society to the

Settlement Commissioner, the details of the individuals with their plot

numbers and total areas of the plots and the area in their occupation

was submitted. A look at this would show that all the individuals had

purchased the plots of somewhat bigger sizes, but were in possession

of the plots of lesser sizes. In the case of plaintiff, it specifically shows

that area of the plot was 427.5 square yards, whereas the area in his

possession was 220 square yards. Area of 147.5 square yards was his

share towards road and 60 square yards towards Public Park.

Similarly, the shares of all the individuals towards roads and parks

were shown. The plea of the defendants appears to be logical that

when the plots were sold by Mr. Sahani, these were of different sizes,

but when the regularized plans were prepared, certain areas were

earmarked for roads and parks and the share of each individual was

taken out from their holdings.

10. The plaintiff in his membership form of the defendant's society

had categorically stated to be in possession of plot No. 43 admeasuring

220 square yards and the property number of this plot being WZ-

406/R. This is also not disputed by the plaintiff. It was also suggested

to him that he had paid developmental charges for the plot measuring

220 square yards vide receipt No. 74054 dated 11.10.1984, which he

denied, though he stated that he had paid the same in good faith of Mr.

Puri and Mr. Bhalla. Further, in reply to a notice under Section 126 of

DMC Act for the assessment years 1988-89 and 1989-90 also, the

plaintiff had shown himself to be in occupation of 220 square yards of

WZ-406/R. This property admeasuring 220 square yards has been

assessed to house tax in his name since then. In a complaint that was

made by the plaintiff himself to the police vide DD No. 13 on

09.04.1988, he had stated to be owner in possession of plot No. WZ-

406/R and alleged the office bearers of the defendant society intending

to open its office in the plot adjoining to his and earmarked as park and

belonging to MCD. It was suggested to him in his cross examination

that the area of 427.5 square yards, as mentioned in conveyance deed

Ex. PW1/1 was arrived at after including his plot area plus his share of

area of public park and road and that this area was included in the plot

just to facilitate payment of whole khasra to the Settlement

Commissioner. Though, while denying the suggestion that he held

various posts in the society's managing committee during 1959 to

1982, he admitted that he was its President in 1971-72.

11. From the above, it would be seen that though the size of the plot

bearing No. 43, which was shown in the conveyance deed was 427.5

square yards, but, as noted above, it was because of the fact that the

plaintiff like all others had purchased plot from Mr. Sahani. Because of

the non-payment of the balance auction price by Mr. Sahani, the

balance payment was agreed to be payable by the defendant No. 2

Society to the Settlement Commissioner for the entire lands of Khasra

No. 1455, 1456 and 1499. It was in this way that the sizes of the plots

of the individual persons, as shown in the list submitted by defendant

No. 2 Society to the Settlement Commissioner, were reflected in the

conveyance deeds in their names, whereas, in fact, at the time of

regularization of the colony in 1962, the MCD, as mandatorily

required, had earmarked certain portions of the lands for the roads and

the public parks. This was the requirement as per Section 313 of Delhi

Municipal Corporation Act for the approval of the regularization plan

of the colony that the lay out plan submitted were necessarily to

reserve lands for streets, open spaces and public park etc. Contribution

of each individual towards roads and public parks was reflected in

detail in the plan submitted by the defendant No. 2 Society. Thus, the

conclusion comes out to be that though the plaintiff was owner of the

plot No. 43 of which municipal number is WZ-406/R, and the size of

which plot when purchased was 427.5 sq. Yards, but, in reality the

actual area of this plot was 220 sq. Yards, the rest of the same being

the share of the plaintiff towards roads and public parks.

12. The submission of the learned counsel for the plaintiff is that no

portion of the land of the plaintiff could be taken by the MCD without

acquisition and payment of compensation thereof. I am in complete

agreement with the learned counsel for the plaintiff. This was in fact

held by the Supreme Court in the case of Pt. Chet Ram Vashist Vs.

Municiapl Corporation of Delhi, 1995 AIR 430. In the said case the

resolution passed by the Corporation directing the appellant to transfer

the space for tube well, school and parks in its favour free of cost was

held to be depriving the owner of his property and vesting it in

corporation against law.

13. The Apex Court elaborately dealt with the provisions contained

in sections 312 to 330 of Delhi Municipal Corporation Act and

observed that reservation or allotment of any site in the layout plan for

any open space, park or school is to be provided by clause (b) of

Section 313 DMC Act and that the open space left for such purposes in

the private colony cannot vest in the Corporation. The Apex Court,

however, further held as under:

"Reserving any site for any street, open space, park, school etc. in a layout plan is normally a public purpose as it is inherent in such reservation that it shall be used by the public in general. The effect of such reservation is that the owner ceases to be a legal owner of the land in dispute and he holds the land for the benefit of the society or the public in general. It may result in creating an obligation in nature of trust and may preclude the owner from transferring or selling his interest in it. It may be true as held by the High Court that the interest which is left in the owner is a residuary interest which may be nothing more than a right to hold this land in trust for the specific purpose specified by the coloniser in the sanctioned layout plan. But the question is, does it entitle the Corporation to claim that the land so specified should be transferred to the authority free of cost. That is not made out from any provision in the Act or on any principle of law. The corporation by virtue of the land specified as open space may get a right as a custodian of public interest to manage it in the interest of the

society in general. But the right to mange as a local body is not the same thing as to claim transfer of the property by itself."

14. Further, as observed by the Apex Court, even a plain reading of

sub-section (5) indicates that the land which is subject matter of a

layout plan cannot be dealt with by the owner except in conformity

with the order of the Standing Committee. In other words, the section

imposes a bar on exercise of power by the owner in respect of land

covered by the layout plan, though it does not create any ownership

right or interest of the Corporation in the land so specified. As is noted

above, it would be seen that the regularization plan was sanctioned in

March 1962 by the defendant/MCD and that a modified regularization

plan was also approved in 1982. The plaintiff was not an ordinary

resident of the colony, but, actively involved in its management, even

being the President of the Colony for considerable time. He was rather

a party to the submission of layout plans of the MCD for

regularization. He did not raise any objection at any point of time and

rather, as noted above, accepted himself to be the owner of the plot

measuring 220 sq. yards, as discussed above. The MCD has been

exercising right over the disputed land, as a public park, as per the

regularization plan since 1962 and the right to manage the same as it

was in the public interest. Since the defendant MCD has not acquired

the ownership rights in the suit lands, but, as discussed above, was

within its rights to manage the same for public park, as per the

judgment of Chet Ram Vashist (supra), it was entitled to get the land

transferred in its favour after paying the market price as prevalent on

the date when the sanction to the layout plan was accorded in 1962.

15. Since the demolition that was carried by the defendant MCD

was, admittedly, not on any portion of the plot admeasuring 220

sq.yards, but on the adjoining land, which are described as plots No. 44

and 45, earmarked for public park, the plaintiff is not entitled to any

damage or injunction since he had ceased to be legal owner thereof and

was holding the same for the benefit of the society or the public in

general.

Issue No.4

16. In view of my findings on the above issues, the plaintiff was

certainly an encroacher of public land forming part of plot numbers 44

and 45 which were meant for Public Park. Hence, issue No. 4 is

decided against the plaintiff.

Issue No.5

17. Having seen above that the layout plan relating to regularization

of the colony was sanctioned in March 1962 and that the suit land

forming part of plots described as plots No. 44 and 45, was meant for

Public Park, the plaintiff, as discussed above, is left with no legal

ownership thereof. The defendant MCD was under an obligation to

manage the suit land as a public park.

18. In view of this, the suit was apparently barred for want of

service of mandatory notice upon the defendant MCD as per Section

478 of Delhi Municipal Corporation Act.

19. There is nothing on record to suggest that the WS signed and

filed by defendant No. 2 is not signed and verified by a competent

person. Mr. M.L. Puri, who had signed and verified the WS on behalf

of defendant No. 2 as President of defendant No. 2, was competent to

sign and verify the same. The issue is, thus, decided in favour of

defendant No. 2.

20. The suit was filed in September 2003. The defendant Society

had filed suit No. 430/1998 against the plaintiff in 1998. It is discussed

above that the plaintiff was well aware of the land adjoining to his

house No. 406/R, having been earmarked as public park in the

regularization plan in 1962, but, no action was taken by him. Further,

cause of action, if any, to seek declaration arose in his favour in 1998

when the defendant society filed civil suit No. 430/1998 against him.

The suit having been filed much after the expiry of limitation period of

three years is, apparently, barred by time. The issue is decided against

the plaintiff.

21. Nothing has been said or brought on record by defendant No. 2

to aver that suit was not properly valued. This issue stands decided in

favour of the plaintiff.

22. The defendant society has placed on record the regularization

plan (Ex. DW1/P1) and also modified regularization plan (Ex.

PW1/D8) of the colony. The regularization plan was approved in

1962 and was modified in 1982. The residents of the colony including

the plaintiff have already paid developmental charges as also the house

tax to the authorities. A suggestion was given to DW-1 Mr. B.P.

Sharma, the Deputy Director of MCD that these plans Ex. PW1/D8 and

Ex. DW1/P1 are not implemented, which he categorically denied.

23. From all this, it is evident that the regularization plan of the

colony had been duly implemented by the defendant MCD. The issue

is decided against the plaintiff.

Relief

24. In view of my findings on the issues as above, the plaintiff is not

entitled to any relief.

25. The suit is dismissed.

M.L. MEHTA, J.

APRIL 29, 2013 awanish