Delhi High Court
Dda vs Hill View Apartments on 12 February, 2018
$~8
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on:- 12th February, 2018
+ CM(M) 537/2016 and CM APPL.20638/2016 (stay)
DDA ..... Petitioner
Through: Mr. Rajiv Bansal, Senior Advocate
with Ms. Sriparna Chatterjee,
Mr. Hitasish Chauhan, Ms. Vasudha
Trivedi, & Ms. Astha Chopra,
Advocates.
versus
HILL VIEW APARTMENTS ..... Respondent
Through: Mr. S.K. Rout, Advocate with
Mr. P. Rath, Advocate.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. The petitioner, Delhi Development Authority (DDA) is
aggrieved with the orders dated 02.02.2013 of the Senior Civil Judge
on the file of the civil suit (No.154/2011) of the respondents (the
plaintiffs) and dated 29.04.2015 of the Additional District Judge-01 on
the file of miscellaneous appeal (MCA No.20/2013) whereby, on the
application under Order XXXIX Rules 1 & 2 of the Code of Civil
Procedure, 1908 (CPC), an ad interim injunction was granted against
the DDA (the defendant) restraining it, its officials, administrators,
servants, agents, etc. from closing three gates in the rear side boundary
wall of residential colony known as Hill View Apartments within the
area of Vasant Vihar, New Delhi-110057, the effect of which restraint
orders essentially is permitting continued use of a portion of land
described as "vehicle parking space" abutting the said outer boundary
wall. It is the contention of the petitioner that ad interim injunction
was granted by the trial court and affirmed by the first appellate court
arbitrarily even while observations have been recorded against the
case set up by the plaintiff having the effect of bringing out that there
is no prima facie case established.
2. The civil suit in which the impugned orders were passed was
instituted in June, 2011 by the respondent which is an association of
residents of Hill View Apartments, it being a residential colony
developed by DDA, it comprising of 120 flats in Block B, Vasant
Vihar, New Delhi wherein allotments were made in 1987-88. It is the
plaintiff's own case that the colony abuts an area developed by the
DDA as bio-diversity park. The copies of two plans have been
submitted one of which is described as "survey plan" of DDA land at
Hill View Apartment and a plan which depicts layout of colony as in
year 2012. It is undisputed fact, as was submitted at the hearing, that
the portion described in the plaint as "the suit property" i.e. "the
vehicle parking space" is depicted in the survey plan by the legend
"metalled portion road" in southernly direction of the border of the
locality. It was further conceded at the hearing that the locality is
connected to the main roads through metalled road on the other side,
the said road moving along the boundary walls of other similarly
developed area leading to North direction. It was also conceded during
the hearing that there are internal roads within the society in question,
developed as a gated community, for movement and circulation of the
motor vehicles of the local residents. The bio-diversity park
concededly is on the side where the disputed area lies.
3. It is the case of the plaintiff that the three gates were provided
on the Southern border of the society with a road for parking of
vehicles which was constructed by the defendant to facilitate the
parking of vehicles of the residents, the maintenance including re-
laying of road, service, lighting, etc. having been arranged by the
"concerned department", such facility having been enjoyed by the
residents since inception. The suit was filed claiming cause of action
on the basis of action initiated on 01.06.2011 by the officials of DDA
digging up the parking area for closing the three said gates thereby
blocking ingress and egress of the people of the locality in that
directions and so as to preclude the use of the space in question for
parking of vehicles of the local residents. The prayer in the suit is for
permanent injunction against DDA so as to restrain it against "taking
over the suit property ..... by closing the above-said three gates". The
application for ad interim injunction made similar prayer.
4. The suit has been contested by DDA contending that the area in
question falls within the bio-diversity park and that the plaintiffs have
no right, title or interest therein. It is the stand of the DDA that the
plaintiffs have unauthorizedly opened the gates in question and have
created a metalled space in an attempt to encroach on the government
land, the said portion of the land not being part of the area which was
developed or allotted to the residents of the society.
5. At the hearing, the counsel for the respondent was repeatedly
asked to show the documents of allotment, if any, respecting the
portion of land wherein the disputed parcel described as "vehicle
parking space" falls. While conceding that no such document of
allotment has been issued, he insisted that this would be a matter of
trial, his submission being that the plaintiffs have been in use of the
area in question for purposes of parking their vehicles since the date of
their respective allotment. He also countered by submitting that DDA
has not come with any document showing it to have made any
"progress" so as to develop the "bio-diversity park" for which the land
in question is stated to be earmarked.
6. Given the fact that the pleadings in the plaint themselves affirm
that the disputed area known as "vehicle parking space" exists on the
bio-diversity park of DDA, it is not necessary for DDA to account for
in a case of this nature, "the progress" or "lack of progress" , if any
in the development of the bio-diversity park. It was conceded by the
counsel for the plaintiffs that neither the plaintiffs society nor any of
its members have been charged or have paid any damages or fee
towards lease or licence of the "vehicle parking space". In these
circumstances, mere assertion on the part of the plaintiff that they have
been in use of said space for parking of their private vehicles cannot
make out a prima facie case for ad interim injunction to be issued.
Having regard to the pleadings in the plaint, there is no dispute as to
the fact that the land used as the vehicle parking space is a government
land. In absence of any letter of allotment or payment of any charges
for its use, the plaintiffs cannot legitimately lay a claim for restraint
order of the kind which has been granted by the courts below,
primarily on considerations of balance of convenience.
7. During the course of hearing, the learned senior counsel for the
petitioner submitted that the ad interim injunction granted by the
courts below restraining DDA from blocking the unauthorized access
to or use of government land has the effect of perpetuating
encroachment, the DDA reserving its right to take all steps available in
law not only to remove encroachment but also to recover damages for
unauthorized use in the past.
8. In the facts and circumstances noted above, it is clear that the
plaintiff of the suit has not been able to establish a prima facie case.
In absence of any letter of allotment qua the area in question and in
absence of any documents substantiating assertion that the gates in
question were opened and the area was metalled or has been
maintained by the DDA, interim relief could and should not have been
granted only on considerations of balance of convenience. In fact, it
was conceded by the counsel for the plaintiffs that there is no road on
the southern end of the society connecting the metalled space with any
nearby public road, the only connection to the public road being from
the points of ingress and egress on the Northern border of the society
to which there is no obstruction. Thus, even the considerations of
"balance of convenience" or "irreparable loss" are not available to
the plaintiffs.
9. For above reasons, the petition is allowed. The ad interim
injunction granted by the courts below shall stand vacated. The
application of the respondent-plaintiff under Order 39 Rules 1 and 2
CPC stands dismissed.
10. Given the fact that the respondents-plaintiffs have been using
the government land all these years, it is for DDA to press home its
claim for mesne profits in accordance with law by appropriate
proceedings in this case or otherwise.
11. Lower court records be sent back.
12. The parties shall appear before the trial Court on 12.03.2018.
13. The petition and the application filed therewith stand disposed
of in above terms.
R.K.GAUBA, J
FEBRUARY 12, 2018
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