Dda vs Om Shanti & Anr.
2013 Latest Caselaw 5264 Del

*                 HIGH COURT OF DELHI AT NEW DELHI

+                   RSA 212/2008 & CM No.12973/2012

                                        Date of Decision : 18.11.2013

DDA                                                         ..... Appellant

                          Through:      Mr.Pawan Mathur, Advocate.

                          versus

OM SHANTI & ANR.                                          ..... Respondents
                          Through:      Mr.L.K.Singh, Advocate for R-1
                                        (a) to (c).
                                        Mr.Shyel Trehan and Ms.Manjira
                                        Dasgupta, Advocates for R-
                                        2/MCD.

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. This is a regular second appeal filed by the appellant/DDA against

the judgment dated 08.02.2008.

2. I have heard the learned counsel for the appellant as well as the

learned counsel for the respondents. The only substantial question of law

which arises for consideration of this court is:

"as to whether the judgment of the first appellate court suffers from any perversity? If so, to what effect?"

3. The learned counsel for the appellant has vehemently urged that the

judgment of the first appellate court dated 08.02.2008 suffers from

perversity inasmuch as without discussing the evidence or the facts of the

case, it has arrived at a finding contrary to the one which is arrived at by

the trial court vide order dated 02.12.2006. In addition to this, the learned

first appellate court has also directed that no action for demolition be

taken in derogation of the judgment passed by the High Court in Civil

Writ Petition No.2361/1990.

4. The learned counsel for R-1(a) to (c) has contended that the only

direction which he is seeking is that the action for demolition cannot be

taken without the appellant/DDA deciding the application for de-

notification of the land in question or the question of regularization of the

unauthorized construction.

5. In order to understand the controversy, it is necessary that the brief

facts of the case be given. The original respondent herein (Sh.Om Shanti

since deceased) filed a suit for permanent injunction against the present

appellant/DDA and the MCD claiming himself to be the owner and in

possession of a residential piece of land bearing no.WZ-131 D/1 Village

Naraina, New Delhi forming part of the land bearing khasra

no.1854/1784 in the revenue estate of village Naraina, New Delhi. It was

alleged that the said residential property was sought to be demolished by

the appellant/DDA on 02.01.1987. Accordingly a permanent injunction

was prayed for restraining the appellant and the MCD, its officials,

servants, assigns and representatives from demolishing the suit property

i.e. property no.WZ 131-D/1, forming part of land bearing khasra

no.1854/1784 in village Naraina, New Delhi.

6. The appellant/defendant filed the written statement and contested

the claim. The stand taken by the appellant was that the parcel of land in

respect of which suit had been filed was falling in Khasra no.1853 and

not 1854. It was further stated that the said khasra no.1853 was already

acquired and the possession of the land in question had already been

taken. So far as khasra no.1854/1784 is concerned, it was the case that

the said land was also duly acquired although the possession of the entire

parcel of land could not taken because of a portion of the land being

heavily built up.

7. On the pleadings of the parties, the following issues were framed:

"1. Whether the suit is bad for want of notice u/S 53B of DD Act? OPD.

2. Whether the plaintiff is owner in possession of a residential piece of land bearing No.WZ-131 D/1 village Naraina forming part of land bearing khasra No.1854/1784 in the revenue estate of village Naraina? OPP.

3. Whether the suit land forms part of khasra no.1783 of village Naraina which stands acquired and has been placed at the disposal of DDA? OPD

4. Whether the plaintiff is entitled for the relief of permanent injunction as prayed for? OPP

5. Relief."

8. The parties were given an opportunity to adduce their respective

evidence. Sh.Om Shanti, the original R-1 herein/plaintiff, produced his

evidence. So far as the appellant/defendant no.1 is concerned, it did not

examine any witness. The learned trial court came to a specific finding

that so far as khasra no.1853 is concerned, the said land was acquired and

the possession thereof was also taken by the appellant/DDA. This fact

was admitted by the the original R-1 herein/plaintiff in his cross

examination while testifying before the court. As regards khasra no.1854,

it was observed that the case of the original R-1 herein/plaintiff was that

his parcel of land falls in khasra no .1854/1784. However, the court held

that even if it is assumed that the land of the original R-1 herein/plaintiff

falls in the said khasra no.1854/1784, still the factum of acquisition of the

said land and the consequent award having been passed by the revenue

authorities was not disputed by them and once the land was acquired, the

entire property in the said parcel of land vested with the Government of

India and, therefore, the same could not be transacted and if at all it was

in possession of the original R-1 herein/plaintiff, it was in his occupation

as a trespasser. The court returned a finding that even the the original

R-1 herein/plaintiff was not able to prove that the suit land falls in khasra

no.1854. Similarly, the court also observed that the appellant was also

not able to establish that the suit land falls in khasra no.1853. This

resulted in dismissal of the suit on merits.

9. The appellant feeling aggrieved by the said judgment, passed by

the learned Civil Judge, preferred an appeal being RCA No.55/2006

before the learned ADJ. The learned ADJ has observed that the

appellant/DDA was not able to establish that the suit property falls in

khasra no.1853. However, the original R-1 herein/plaintiff was able to

establish that the suit property falls in khasra no.1854/1784. If that be so,

it was observed that as the original R-1 herein/plaintiff and some other

persons have already filed a writ petition being WP No.2361/1990,

therefore, no action for demolition be taken by the appellant except in

accordance with due process of law and further it should be in

consonance with the decision of the High Court in WP No.2361/1990. It

may be incidental to mention that in WP No.2361/1990 the the original

R-1 herein/plaintiff had challenged the acquisition proceedings pertaining

to khasra no.1854. A perusal of the relief in writ petition shows that the

following relief was claimed by the the original R-1 herein/plaintiff, who

was one of the parties in the writ petition.

"Certiorari to quash the notification under Section 4 and the declaration u/Section 6 issued on 13.11.1959 and 05.09.1963, respectively, and any other subsequent acquisition proceedings in respect of the land and houses belonging to the petitioners on parts of Khasra No.1854/1874 (3 bighas 3 biswas) of village Naraina New Delhi also known as House No.WZB-52, Naraina village, New Delhi."

10. Mr.Mathur, the learned counsel for the appellant, has contended

that the relief which was claimed in the writ petition was pertaining to

khasra no.1854/1784 specifically confined to a particular property being

House No.WZ 52, Naraina Village, Ring Road, New Delhi and, therefore,

the first appellate court has been misled and the first appellate court

committed perversity by extending the said interim orders to the present

proceedings also. It was contended that the two properties - one which is

involved in the writ petition and the other which was involved in the suit

were different properties although pertaining to the same village and

therefore the judgment of the first appellate court restraining the

appellant/DDA from demolishing the construction of the original R-1

herein/plaintiff on property No.WZ-131/D/1 forming part of Khasra

No.1854/1784, village Naraina, Delhi with a clarification that the order

would be subject to the outcome of Civil Writ Petition No.2361/1990,

suffers from perversity.

11. I fully agree with the contention advanced by Mr.Mathur that the

properties involved in the two proceedings were totally different and

therefore the learned ADJ while deciding the appeal has committed a

perversity by making his order subject to the decision in the writ petition.

To that extent, the order deserves to be set aside. Even with regard to the

factum that the appellant should not take any precipitative action against

the original R-1 herein/plaintiff is also not justified by giving any reasons.

The judgment of the first appellate court does not discuss the evidence at

all which has been adduced by the parties to arrive at a finding by

reversing the finding of the trial court.

12. I feel that the first trial court has committed a grave perversity by

not giving the reasons as well as by not discussing the evidence and

simply on ipse dixit having upset the finding returned by the trial court. I

accordingly feel that the present appeal deserves to be allowed. The

judgment of the first appellate court dated 08.02.2008, which is

challenged in the present regular second appeal, is set aside and the

judgment of the trial court is restored.

13. With these directions, the appeal is allowed.

V.K. SHALI, J.

NOVEMBER 18, 2013 dm