Delhi High Court
Ramesh Jain & Anr. vs Ndmc & Anr. on 12 August, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) No. 746/2014 & CM No. 13070/2014 (stay)
% 12th August , 2014
RAMESH JAIN & ANR. ......Petitioner
Through: Mr. Shiv Kumar Sharma, Adv.
VERSUS
NDMC & ANR. ...... Respondents
Through: Mr. Kapil Dutta, Adv. for R-1.
Mr. Sanjeev Sabharwal, standing
counsel for R-2/DDA.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This petition under Article 227 of the Constitution of India
impugns the concurrent order and judgment passed by the courts below ; of
the trial court dated 4.6.2013 and the first appellate court dated 28.4.2014
respectively; by which the injunction application of the petitioners/plaintiffs
has been dismissed. The case of the petitioners/plaintiffs was that they had
purchased the suit property being no. HR-12C, Anand Parbat Industrial
Area, New Delhi admeasuring 170 sq. yds from one Smt. Meera Kanwaria
CMM 746/2014 Page 1 of 5
through usual documentation of Agreement to sell, General Power of
Attorney etc dated 3.11.1998. It was further the case of the
petitioners/plaintiffs that the possession of the suit property was given to the
petitioners by Smt. Meera under the said documentation. It is further argued
that government had taken "paper possession" only and consequently, the
petitioners/plaintiffs being in possession of the suit property, the action of
the respondents i.e North Delhi Municipal Corporation and Delhi
Development Authority in demolishing the boundary wall around the subject
plot is illegal.
2. Before this Court, it is argued that possession of the
petitioners/plaintiffs be protected, and the respondents cannot demolish a
boundary wall which is in fact not permissible by the Municipal bye-laws.
3. In my opinion, there is no merit in the present petition
inasmuch as, relief of injunction is a discretionary relief, and to get such a
relief petitioners/plaintiffs must show basis with respect to title and
possession of the suit land. So far as the possession is concerned, and which
aspect in the present case is also related to title, it is the case of the
petitioners/plaintiffs itself that "paper possession" was taken. Once
therefore, possession was taken of the suit land by the governmental
CMM 746/2014 Page 2 of 5
authorities under the Land Acquisition Act, 1894 no title remained either of
the predecessor of the petitioners/plaintiffs or of the plaintiffs. A reference to
the pleadings in the suit also shows that the wall of the petitioner stood
demolished and, therefore, actually, the petitioners/plaintiffs were not in
possession of the suit property on the date of the filing of the suit, and even
if such a possession was there it would have been of an encroachment of a
person on government land.
4. The first appellate court has in this regard made correct
observations in para 8 of the impugned judgment and which para 8 reads as
under:-
"8. The appellants claim their right over the suit property on
the basis of certain documents like General Power of
Attorney, Possession Letter, Affidavit, Will, Receipt for a
sum of Rs.5 lacs as executed by one Smt. Meera in
favour of the appellants/plaintiffs. The appellants also
claim that in an earlier suit as filed by Smt. Meera against
the appellants a compromise took place and the said Smt.
Meera handed over the suit property to the appellants
after receiving a consideration of Rs.5 lacs. The record
shows that the appellants have failed to show clear title
of Smt. Meera in the suit property and when the title of
the person from whom the appellants got the suit
property was itself not clear, the appellants cannot claim
any ownership in it. The appellants themselves admit in
the plaint that the whole of the land on which the suit
property is situated was owned by Ramjas Foundation.
The appellants have failed to show that the suit property
was duly transferred by Ramjas Foundation in favour of
CMM 746/2014 Page 3 of 5
Smt. Meera. The appellants also admit in para no. 16 of
the plaint that the government got the possession of the
whole of the land on 13.09.2001 and then it was handed
over by the government to the DDA i.e. the defendant
no.2. The only objection of the appellant is that the said
possession was only a paper possession and the
appellants have infact holding the possession of the suit
property till date. The respondent no.2 placed on record
a notification to show that after acquisition, the land on
which the suit property situates, has already been handed
over to it. When according to the appellants themselves,
after acquisition the whole of the land on which the suit
property situates has been handed over by the
government to the DDA, the objection of the appellants
that the possession was merely a paper possession is not
tenable at all. When land on which the suit property
situates has already been acquired and its possession has
been handed over to DDA, the appellants cannot claim
any right, specially when they have no clear title over it."
5. Counsel of the petitioners wanted to cite judgments which hold
that unless land acquisition proceedings are complete, "paper possession"
taken cannot confer any right upon the governmental authorities, however,
there is no dispute to the legal proposition that unless land is acquired the
governmental authorities cannot have title to the land, however, in the
present case, it is only a mere assertion of the petitioners/plaintiffs that the
possession taken was "paper possession", and consequently, I refuse to agree
with the arguments urged on behalf of the petitioners/plaintiffs that only
"paper possession" was taken and not actual possession. Also, the aspect of
CMM 746/2014 Page 4 of 5
actual physical possession of the governmental authorities/respondents is
clear, and as stated above, from the fact that the endeavour of the
petitioners/plaintiffs to encroach upon the suit land by constructing boundary
walls was defeated and the boundary walls with respect to the suit property
were demolished by the respondents/governmental authorities.
6. Powers under Article 227 of the Constitution of India are
discretionary and are meant to further ends of justice. Powers under Article
227 of the Constitution of India cannot be exercised in favour of a person
who is endeavouring to encroach upon government land or is an encroacher
of government land.
Dismissed.
AUGUST 12, 2014 VALMIKI J. MEHTA, J.
ib
