Ashok Kapoor & Ors vs Municipal Corporation Of Delhi
2014 Latest Caselaw 1307 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                           Date of decision:11th March, 2014
+                                 CS(OS) 2045/2008
       ASHOK KAPOOR & ORS                                     ..... Plaintiffs
                  Through:               Mr. Jasmeet Singh with Ms. Kritika
                                         Mehra, Advs.

                                     Versus

    MUNICIPAL CORPORATION OF DELHI               ..... Defendant
                  Through: Mr. Rahul Srivastava for Ms. Suparna
                           Srivastava, Adv.
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.

The seven plaintiffs have filed the present suit, pleading;

(i) that the seven plaintiffs are residents of their respective houses

on Khajoor Road, Karol Bagh, New Delhi and which stretch of

road is barely 200 meters long;

(ii) that the plaintiffs are owners / possessed of or otherwise

sufficiently entitled to their respective properties on the said

road;

(iii) that the right of way of Khajoor Road has always been 80 ft., as

is evident from Notification No.13/46/2006-ud/16071 dated 15th

September, 2006 read with Corrigendum S.O. 1511 (E) dated

14th September, 2006 notifying the right of way of Khajoor

Road as 24 meters i.e. 80 ft.;

(iv) that as per the Delhi Development Authority (DDA), the right

of way means the distance between property line to property

line on either side of the road;

(v) that in front of each house on Khajoor Road, on both sides of

the road, beyond the right of way is a parcel of land which has

been leased to each of the house owners as a "grassy plot"; the

lease in respect of grassy plots of the plaintiffs is valid and

subsisting;

(vi) that the grassy plots falling in between the row of houses and

the right of way are kept open to the sky and the residents have

been using the grassy plot in front of their respective houses for

keeping plants, flower pots etc.;

(vii) that each of the plaintiffs has been in exclusive possession and

enjoyment of the grassy plots in front of his house, to the

exclusion of the defendant MCD;

(viii) that the defendant MCD has not been exercising any control

over the said grassy plots;

(ix) though the defendant MCD termed the plaintiffs as "licencees"

of the said grassy plots but the same is of no avail since the

plaintiffs are in excusive possession of the grassy plots in front

of their respective houses;

(x) that from the year 1985-86 the defendant MCD had not raised

any demand for rent / use and occupation charges also of the

said grassy plots from any of the residents on the said road,

though the plaintiffs have always been ready and willing to pay

the same;

(xi) that in the second week of March, 2008 the plaintiffs learnt that

the defendant MCD was planning to concretize the grassy plots

in front of their respective houses and make pavement thereon,

though a pavement already exists;

(xii) that while the plaintiffs were attempting to elicit information

from the defendant MCD under the Right to Information Act,

2005 (RTI Act) qua the position of the said grassy plots, the

defendant MCD attempted to carry out demolition, laying of

pavement / road on the grassy plots aforesaid in front of the

houses of the plaintiffs, claiming the right of way Khajoor Road

to be of 100 ft.;

(xiii) that ultimately the plaintiffs, in reply to their queries under the

RTI Act were informed of the proposal of the defendant MCD

of construction of new footpath at the extreme outer edge of

right of way of the road, to avoid encroachment;

(xiv) that though the plaintiffs had filed W.P.(C) No.5910/2008 in

this regard but upon the Bench expressing the view that the

questions arising for adjudication would require evidence, the

said writ petition was withdrawn to file the instant suit;

(xv) that the plaintiffs were put in possession of the grassy plots by

the defendant MCD itself more than 40 years prior to the

institution of the suit and the plaintiffs could not be deprived of

possession of the grassy plots without due process of law; and,

(xvi) even otherwise nobody can be dispossessed without following

the due process of law.

accordingly the reliefs of, (a) declaration that the right of way of

Khajoor Road which include the pavement and excludes the grassy plots, is

80 ft.; (b) declaration that the defendant MCD is bound by the Notification

aforesaid whereby the right of way of Khajoor Road is 80 ft.; (c) declaration

that the Resolution No.21 dated 30th April, 1949 of the Building Committee

did not determine the right of way of Khajoor Road; (d) declaration that

lease in respect of grassy plots is valid and subsisting; (e) mandatory

injunction directing and commanding the defendant MCD not to disturb the

right of way of Khajoor Road as 80 ft.; and, (f) for permanent injunction

restraining the defendant MCD from dispossessing the plaintiffs from the

grassy plots in front of their houses except by due process of law, were / are

claimed.

2. Summons of the suit and notice of the application for interim relief

were issued to the defendant MCD and vide ex parte ad interim order dated

26th September, 2008 the defendant MCD and its employees were restrained

from demolishing the boundary walls and from taking away the use of the

grassy plots in front of the houses of the plaintiffs.

3. The defendant MCD has contested the suit by filing a written

statement, inter alia on the grounds:-

(a) that the width of Khajoor Road as per Resolution No.21 dated

30th April, 1949 of the Building Sub Committee is 99 ft.;

(b) that the owners of the houses on either side of the Road have

however encroached upon the Municipal land and the right of

way of Khajoor Road;

(c) that Tehbazari fees was recovered from only one of the

residents of Khajoor Road, under Section 321 of the Delhi

Municipal Act, 1957 (DMC Act) with respect to the grassy

plot, upon noticing the encroachment thereof;

(d) that the plaintiffs also along with their plaint have not enclosed

any latest Tehbazari Receipt with respect to the grassy plots;

(e) except for the year 1985 when encroachment fee up to 1985

was received, no Tehbazari also had been collected and the

defendant MCD has not given any permission to use Municipal

land and the plaintiffs are in encroachment thereof;

(f) that no lease, in favour of any of the residents, of the grassy

plots was ever created; rather being Municipal land it cannot be

let out in any manner whatsoever;

(g) in fact encroachments were removed by the defendant MCD in

the month of July, 2007; and,

(h) that no notice is required to be given for action under Sections

320 and 321 of the DMC Act for removal of encroachment

from Municipal land.

4. The suit has been languishing for the last nearly six years without

even the ex parte ad interim injunction granted in favour of the plaintiffs

being confirmed.

5. The suit came up before this Bench on 6th March, 2014 when it was

found to be ripe for framing of issues. On perusal of the claim of the

plaintiffs, it was found to be prima facie misconceived and it was observed

that even proper parties had not been impleaded, as MCD is merely in

management of lands which otherwise belong to the Union of India (UOI)

and the claim of the plaintiffs in the suit with respect to the said lands could

not be adjudicated in the absence of UOI, which had not been impleaded. On

perusal of the documents filed by the plaintiffs, it was also observed in the

order dated 6th March, 2014 that the same did not show the plaintiffs to have

any right with respect to the grassy plots in front of their houses and thus the

question of putting the suit to trial did not arise. On request of the counsel

for the plaintiffs the suit was adjourned.

6. The plaintiffs have since filed IA No.4372/2014 for amendment of the

plaint and IA No.4373/2014 under Order 1 Rule 10 of the CPC.

7. The counsels have been heard on the aspect of maintainability of the

suit as well as on the said applications.

8. The plaintiffs, vide applications aforesaid seek to implead the Public

Works Department (PWD), DDA and the UOI through the Ministry of

Urban Development as defendants no.2 to 4 in the suit, pleading that the

rights and obligations of the sole defendant MCD qua the suit property stand

transferred to PWD which is now in management and maintenance of

Khajoor Road; DDA is sought to be impleaded in view of the objections in

the written statement of the MCD to the effect that DDA is the only

Competent Authority to declare the right of way of Khajoor Road as 30

meters instead of 24 meters; the reason pleaded for impleadment of UOI is

that the Zonal Development Plan is prepared by the Ministry of Urban

Development. Amendments consequential to impleadment of the defendants

are also sought to be made in the plaint.

9. The plaintiffs would be entitled to the relief of permanent injunction,

restraining, whichsoever Governmental / Municipal Agency may be the

concerned agency, from dispossessing the plaintiffs from the grassy plots in

front of their houses, only if plead and prove a right to the said grassy plots

in front of their houses. The other reliefs claimed in the plaint, of declaration

qua the right of way of Khajoor Road and qua various Notifications and

Resolutions, are only in aid of the main relief claimed in the suit of the right

of the plaintiffs to the said grassy plots in front of their respective houses.

Else, it is not the case of the plaintiffs that they otherwise are affected by the

dimensions of the right of way of Khajoor Road. The plaintiffs have raised

the issues of dimensions of right of way of Khajoor Road only to lay a claim

to the said grassy plots.

10. However, the dimension of the right of way of Khajoor Road, in my

view is immaterial. Whether the size / dimension of right of way of Khajoor

Road be 80 ft. as pleaded by the plaintiffs or 100 ft. as pleaded by the

defendant MCD, the same would not vest any right in the plaintiffs in the

excess land even if any between the boundaries of the said right of way and

the houses of the plaintiffs, unless the plaintiffs establish a right thereto.

11. The core question thus for consideration in the present case is whether

the pleadings of the plaintiffs disclose any right of the plaintiffs to the said

grassy plots and whether the said pleas are required to be put to trial. It

cannot be lost sight of that the suit has already remained pending for nearly

six years, without even issues being framed therein and in all these six years

the defendant MCD has remained restrained from demolishing the boundary

walls which the counsel for the plaintiffs admits, each of the plaintiffs have

constructed around the grassy plots in front of their houses and from taking

over possession of the said grassy plots, which undoubtedly are public lands,

whether for the purpose of increasing the width of Khajoor Road or for the

purpose of constructing / developing a concretized pavements / berms on the

sides of the said Khajoor Road.

12. When we see the controversy in this light, I am afraid, the plaint does

not disclose any right whatsoever of the plaintiffs to the said grassy plots qua

which the relief is claimed in the suit.

13. The counsel for the plaintiffs admits that the title documents of the

house of each of the plaintiffs do not include the said grassy plots. Rather

the plaintiffs have shied away from filing the documents of title of their

respective houses and which if filed, would normally have described the

boundaries of the houses of the plaintiffs and in describing which the

description of the land on the side where the grassy plots are situated would

have shown the ownership / use thereof. Adverse inference has to be drawn

against the plaintiffs for having not filed the said documents, though the

stage therefor has gone.

14. The plaintiffs in para No.3 of the plaint have pleaded that the said

grassy plots have been leased to each of the house owners and that the said

lease is subsisting. Neither the date on which the said lease was granted is

stated nor is it pleaded as to who granted the said leases and in whose favour

and on what terms. A lease is a contract and when the very existence of the

contract is denied, it is incumbent upon the person claiming a contract to

plead facts to prove which evidence may be permitted to be lead to establish

such a contract.

15. As aforesaid, MCD is not the owner of such lands as has been held by

the Supreme Court in Municipal Board, Mangalur Vs. Mahudeoji Maharaj

(1965) 2 SCR 242 and reiterated in State of U.P. Vs. Ata Mohd. (1980) 3

SCC 614. It was held that when a street is vested in the Municipality, such

vesting does not transfer to the Municipality the rights of the owner which

continue to stand in the State; the Municipality only has the exclusive right

to manage and control to the extent necessary to adequately maintain the

street and to bring action against trespassers. The defendant MCD is thus

only in management of the said lands. The counsel for the plaintiffs has

been unable to show the right if any of the MCD to lease out the said land.

16. The defendant MCD which is claimed to have granted the lease, is a

statutory body constituted under The Delhi Municipal Corporation Act, 1957

and Section 202 whereof prescribes the procedure for making contracts. The

same provides, that every such contract on behalf of the defendant MCD

shall be made by the Commissioner and no such contract which requires the

sanction of the MCD or some other municipal authority shall be made

without such approval or sanction. Section 203(2) provides that no contract

which is not made in accordance with the provisions of the Act and the bye-

laws shall be binding on the MCD. Similarly, Section 200, while providing

for the disposal of the property of the MCD, in Clause (b)(ii) thereof

provides for the grant of a lease of any immovable property belonging to the

MCD only with the sanction of the Standing Committee of the MCD. It

further provides that the consideration for which any immovable property

may be sold, leased or otherwise transferred shall not be less than the value

at which such immovable property could be sold, leased or otherwise

transferred in normal and fair competition. It is not pleaded by the plaintiffs

that the said contracts of lease alleged to have been granted by the defendant

MCD were granted by the Commissioner or that there was any sanction of

the Standing Committee of the MCD therefor or as to what was the rate of

rent settled or whether the said rent settled was a fair rent for the land. In the

absence of such pleadings, it has but to be presumed that the contract alleged

of lease was not made in accordance with the provisions of Sections 200 to

202 (supra) and thus the contract even if any of lease as alleged by the

plaintiffs, would not be binding on the MCD.

17. Once, it is found that the contract of lease alleged by the plaintiffs

even if held to exist, is not binding on the defendant MCD, no question of

putting the suit to trial to prove the existence of such a contract arises.

18. I may also mention that the plaintiffs, in support of their case, have

filed, (i) a receipt dated 30th March, 1985 issued by the MCD of payment of

Rs.90.70p in the name of one Sh. Roshan lal (who is not the plaintiff)

towards tehbazari of open flower bed upto 31st March, 1985; (ii) a copy of

the reply of the MCD to the letter dated 2nd March, 1967 of Sh. Sohal Singh

/ Gajinder Singh (Sh. S. Gajinder Singh is plaintiff No.3) at the address of

333, Khajoor Road (the address given in the memo of parties of the plaintiff

No.3 Sh. S. Gajinder Singh is 16/333, Khajoor Road, Karol Bagh, New

Delhi) with the subject "Encroachment-Permission for under Section 321"

granting permission to encroach upon 30 ft. x 15 ft. of street with effect from

1962-63 in front of building No.333 situated at Khajoor Road subject to the

conditions given on the reverse of the said reply and on payment of

Rs.259.98p for the periods 1962-63 to 1967-68. The conditions mentioned

on the reverse of the said reply are as under:

"1. Permission for encroachment shall be puraly temporary.

2. No structure, temporary or permanent and of whatever material will be permitted to be set up, nor the site will be covered by any project on. A fencing or a compound wall of such design and of such material as has been specified here in after will, however be permissible.

3. The fencing shall be of barbed or round wire supported by angle-irons, or of wire-netting or of hedges.

4. The encorachment shall ordinarily be permitted in the form of a lawn or flower-bed, but paving of site may also be permitted on application provided that the praving shall not be in the form of a platform.

5. In no case any portion of the storm water drain passing through any part of the strip beyond the building line shall be permitted to be filled up or covered or rendered inaccessible for purposes of cleaning etc.

6. The encroachment so permitted shall in no case be taken into consideration as open space for purposes of calculating the permissible coverage under the Building Byelaws, nor it shall be taken in account for purposes of set-backs, nor it shall be included in the plot owned or occupied by the applicant.

7. A fee of Rs.1/- per square yard per annum for the space encorached upon shall be payable in advance by the license, and in the event of non-payment of such fees in advance the encorachment shall be deemed as unauthorized for which action under Section 322 will be taken without notice.

8. The permission shall be liable to be revoked in the event of a breach of any of the conditions subject to which it has been given.

9. Irrespective of the conditions subject to which permission has been given, the permission will be liable to be withdrawn if the space encraoched upon or any portion thereof is required for any public of a drain, laying of sewer or water main, providing a stand for vehicles, laying of cables for street-lighting, etc. In the event of such withdrawal, the licencee shall within the time specified in the notice remove the entitled to any compensation whatsoever. The fee for the unexpired period of the year shall however, be refundable."

19. The plaintiffs have also filed notice dated 11th March, 1983 of the

defendant MCD to the aforesaid Sh. Sohal Singh which also suggests that

the grassy plot was allotted to him out of municipal land on payment of

tehbazari fee and demanding the tehbazari fee due from him. The plaintiff

has also filed receipt dated 20th February, 1984 issued by the MCD in the

name of the aforesaid Sh. Sohal Singh for Rs.160/- towards tehbazari for

open grassy flower bed up to 31st March, 1984.

20. The documents filed by the plaintiffs themselves thus do not bear out

the case of the plaintiffs, of being lessees of the said grassy plots.

21. Though the counsel for the plaintiffs has referred to Associated Hotels

of India Ltd. Vs. R.N. Kapoor AIR 1959 SC 1262 and Municipal

Corporation of Delhi Vs. Pradip Oil Corporation 100 (2002) DLT 442 (FB)

to contend that the question, whether a transaction is of lease or licence is a

mixed question of fact and on the basis thereof has contended that the suits

have to be necessarily put to trial, but once the documents filed by the

plaintiffs themselves do not bear out a case pleaded of lease and clearly

show the transaction to be a mere tehbazari or a licence, I fail to see why the

suit should be put to trial. This Court in Ram Raj Chaurasia Vs. Ram

Bakshi MANU/DE/2977/2011 has held that Tehbazari is a combination of

two words i.e. "Teh" + "Bazari", meaning thereby, to utilize surface for the

purpose of commercial activity and it does not create interest in the land but

to utilize the same, which amounts to license.

22. Faced therewith, the counsel for the plaintiffs has referred to the order

dated 15th September, 2011 of the Division Bench of this Court in RFA (OS)

No.9/2010 tittled Guru Tilak Vyayamashala Vs. Delhi Development

Authority and which in turn relies on Alka Gupta Vs. Narender Kumar

Gupta (2010) 10 SCC 141 to contend that in view of the averments made in

the plaint, the suit cannot be dismissed at the stage of admission itself.

23. Whether a case for putting the suit to trial is made out or not depends

upon the pleadings of each case. Merely because, on the basis of the

pleadings in one case it has been held that the suit could not have been

dismissed and should have been put to trial cannot be a precedent for putting

a suit, from the pleadings wherein itself no right in law is established, to be

put to trial.

24. The counsel for the plaintiffs has lastly contended that the plaintiffs

being in settled possession, the said possession even if unauthorized ought to

be protected and possession can be taken by following the due process of

law only. Reliance in this regard is placed on Deep Chand vs. Kulanand

Lakhera 140 (2007) DLT 765.

25. The Supreme Court in S.P. Chengalvaraya Naidu Vs. Jagannath

AIR 1994 SC 853 has held that today the Courts are inundated by land

grabbers, tax evaders and other unscrupulous persons from all walks of life

and time has time for the Courts to respond appropriately. Similarly, in

Dalip Singh Vs. State of U.P. (2010) 2 SCC 114 it was held that to meet the

challenge passed by the new creed of litigants who shamelessly resort to

falsehood and unethical means, the Courts from time to time have to evolve

new rules. Unless the Courts keep pace with the times and with the

situations which they are called upon to meet today, the Courts would be

failing in their duty. Hon‟ble Mr. Bhagwati J. in Bandhua Mukti Morcha

Vs. Union of India 1984 (3) SCC 161 echoed the same sentiment by

observing that in the center of a social order changing with dynamic pace,

the Court needs to balance the authority of the past with the urges of the

future.

26. Once it is found that the case pleaded by the plaintiff is patently false

as per the documents filed by the plaintiffs themselves, and that the plaintiffs

are grabbers of and encroachers over public land, I fail to see as to why the

Court should come to the rescue of such plaintiffs. It cannot be lost sight of

that the plaintiffs are seeking the relief of permannent injunction against

their forcible dispossession. The Courts while granting injunctions albiet

temporarily have besides the ingredients of prima facie case, balance of

convenience and irreparable loss and injury have also applied the test of

public interest. The grant of the relief of permanent injunction also being a

discretionary one, I fail to see as to why the said test of public interest be not

applied at the stage of grant of permanent injunction also. When we look at

the matter in this light, what emerges is that protecting the possession of the

seven plaintiffs is to the prejudice of millions of other residents of the city

who are also to be served by the defendant MCD and other governmental

agencies. Allowing the plaintiffs to continue usurping public land amounts

to depriving the other citizens from use of the said open space, whether for a

wider road or for use as a pavement / berm along with the road.

27. Reference in this regard may again be made to the judgment of S.P.

Chengalvaraya Naidu supra laying down that a person whose case is based

on falsehood has no right to approach the Court and can be thrown out

summarily; non-production and even non-mentioning of a material

document was held to be tantamounting to playing a fraud on the Court. It is

the settled principle of law, that a party guilty of suppression of material

facts (Hanamantha Ranoji Vs. Sri Mahadev Channabasappa (2000) 6

SCC 120), a party who approaches the Court with a pair of dirty hands

(Mohammedia Coop. Building Society Ltd. Vs. Lakshmi S. Coop. Building

Society Ltd. (2008) 7 SCC 310) is not entitled to the relief which is

discretionary.

28. I have during the hearing also invited the attention of the counsel for

the plaintiffs to the judgment of the Full Bench of this Court in Chandu Lal

Vs. Municipal Corporation of Delhi AIR 1978 Delhi 174 holding that a

licencee has no right to retain possession and would not be entitled to

injunction against eviction and that resonable force can be used for eviction

of the said licencee.

29. The plaintiffs as per their own documents, even if granted tehbazari of

the grassy plot in front of their house were not entitled to include the said

grassy plots within the compound of their house as they claim to have done.

30. The plaintiffs having indulged in illegal act, this Court cannot become

privy to continuation thereof.

31. Section 2(57) of the Delhi Municipal Corporation Act, 1957 defines a

street as including any way, road, lane, square, court, alley, gully, passage,

whether a thoroughfare or not and whether built upon or not, over which the

public have a right of way and also the roadway or footway over any bridge

or causeway. It is thus evident that „street‟ has wider definition than a right

of way and would also include the pavements, berms along with the street as

well as lane abutting the street and till the set back of the buildings abutting

the streets. The Supreme Court, in Ata Mohd. supra also reiterated that side

lands are also included in the public way.

32. The said land is thus to be dealt with in accordance with Chapter XV

of Delhi Municipal Corporation Act containing Sections 298 to 330 and

under which also there is no requirement for taking legal recourse for

removal of encroachment on the street.

33. In that view of the matter, I fail to see what purpose would be served,

even if the applications filed by the plaintiff under Order I Rule 10 of the

CPC and / or for amendment of the plaint were to be allowed.

34. The suit as well as the applications are accordingly dismissed. Each

of the plaintiffs is further burdended with costs of Rs.25,000/- payable to the

defendant MCD within one month of this order as exemplary costs for filing

a false case and for compensating the defendant MCD for the period of

interim stay in this suit, which now, on dismissal of suit, stands vacated.

Decree sheet be prepared.

RAJIV SAHAI ENDLAW, J MARCH 11, 2014 pp /gsr..

(corrected & released on 29th March, 2014)