Moksh Dham Sewa Vikas ... vs Ashok Sharma & Ors.
2019 Latest Caselaw 2531 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of decision: 15th May, 2019
+                               CS(OS) 469/2016.

    MOKSH DHAM SEWA VIKAS SAMITI(REGD.)
    & ANR.                                         ..... Plaintiffs
                  Through: Mr. D.K. Rustagi, Mr. Mayank
                              Rustagi and Mr. Akshit Rastogi,
                              Advs.
                          versus
     ASHOK SHARMA & ORS.                       ..... Defendants
                  Through: Mr. Vaibhav Agnihotri and Mr.
                              Vinayak Harshvardhan, Advs. for
                              DDA.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.

The two plaintiffs namely Moksh Dham Sewa Vikas Samiti (Regd.) and Gautam Guha have instituted this suit for declaration and permanent injunction, pleading (i) that the plaintiff no.1 is a Society incorporated on 16th February, 2005; the registration of the Society was sought to formalise the affairs of the cremation ground now known as Moksh Dham and earlier known as Dakshin Delhi Muktidwar Shamshan Ghat, Nehru Place New Delhi - 110 019; this cremation ground is located in-between Nehru Place and Kalkaji Mandir; (ii) the cremation ground measures 3.3 acres; (iii) the plaintiff no.2 is one of the devotees and authorised representative of Saccidananda Society which is a society engaged in propagating religious and spiritual discourse; the plaintiff no.2 has personally supervised the operations of the plaintiff no.1 Society for the last four years; (iv) the defendant no.1 Ashok Sharma has been operating as head priest since the

year 1965 at the said cremation ground and was appointed by the plaintiff no.1 Society (it is incongruous that if the plaintiff no.1 Society was incorporated on 16th February, 2005, how it could appoint defendant no.1 in the year 1965); (v) that the defendant no.2 Bharat Sharma is the son of defendant no.1 and is a tenant in one of the shops in the cremation ground but has stopped paying the rent; (vi) the defendant no.2 is also intending to takeover control of the cremation ground and has filed a civil suit in this regard; (vii) that in the year 2004, the defendant no.4 Delhi Development Authority (DDA) and the defendant no.3 Deputy Director (LM) of the defendant no.4 DDA demolished a portion of the boundary wall of the cremation ground; (viii) that the defendant no.4 DDA advised the then officials of the plaintiff no.1 Society to seek regularisation documents of their ownership/management of the cremation ground; (ix) as per the revenue records, the land of the cremation ground was owned by the priest of Kalka Mandir and the Khasra Girdawari shows it is a Shamshan Ghat in the name of Delhi Government; (x) the plaintiffs are not aware on what basis the name of owner of the land in the revenue record was changed from priest of Kalka Mandir, to Delhi Government; (xi) the land of the cremation ground in Khasra No.624 and 625 was/is situated alongside the land of Kalkaji Temple and the said land over the years came to be used as a cremation ground; (xii) the residents of the surrounding areas, in the year 1965 formed Kalkaji Welfare Association for development of the cremation ground and the boundary of the cremation ground was constructed in the year 1970 by the said Kalkaji Welfare Association; (xiii) that Kalkaji Welfare Association, under the clear understanding that this land is a private land and stood divested from those who may be owners,

continued using the same as a cremation ground; (xiv) the defendant no.4 DDA has also recognised the land as cremation ground; (xv) none of the governmental agencies are involved in running the affairs of the said cremation ground; (xvi) in the survey of the year 2002 carried out by the defendant no.4 DDA to identify land required for construction of Delhi Metro, the cremation ground was identified as non-governmental land and only the adjoining areas were acquired for Delhi Metro; (xvii) however this survey created an erroneous impression that the land of the cremation ground belonged to defendant no.4 DDA; (xviii) though the plaintiff no.1 Society completed certain formalities including of offering price but defendant no.4 DDA did not respond thereto from the year 2004 till the institution of the suit since defendant no.4 DDA had no title to the land; (xix) the members of the Kalkaji Welfare Association secured registration of the plaintiff no.1 as a Society; (xx) the plaintiff no.1 Society is solely in control of the cremation ground and since the same is built on private land, also "acquired title over the land by prescription"; (xxi) there is no claimant to the ownership of the land; (xxii) the plaintiff no.1 Society, with a view to further develop the cremation ground, carried out beautification works therein; (xxiii) on the complaint of defendants no.1&2 to the defendant no.4 DDA, the defendant no.4 DDA, without hearing the plaintiffs and despite continuous correspondence of the plaintiffs with the defendant no.4 DDA for regularisation and allotment, initiated action for demolition of structures on cremation ground land under the garb of the same being in encroachment of public land; (xxiv) the plaintiffs apprehend that the defendant no.4 DDA may carry out demolition of structures in the

cremation ground; and, (xxv) that the defendant no.4 DDA, till the institution of the suit had never claimed any rights in the land.

2 Hence the present suit claiming :-

"(a) pass a decree of declaration in favour of the plaintiff No.1 society and against the defendant No.1 to 6 thereby declaring that the entire superstructure along with land underneath has been private land and stood vested in Plaintiff No.1 Society being in its exclusive control/management without the interference of any other person including any public body/entity such as defendant No.3&4 on any ground whatsoever;

(b) grant a decree of permanent injunction in favour of the plaintiffs and against the defendants, their respective representatives, officials, employees, agents etc etc from taking any action which cause any kind of interference in the running/management of affairs of cremation ground/Moksh Dham either by undertaking of „demolition drive on any pretext/basis including under the garb of public encroachment or otherwise for any structure, which is located within the boundary wall of Moksh Dham i.e. the cremation ground at Nehru Place as described in the plan attached as well as by Survey Report/layout plan dated 10.02.2002 of DDA".

3. The suit came up first before this Court on 19 th September, 2016, when while issuing summons/notice thereof, the defendant no.4 DDA was restrained from taking any demolition action in respect of structures existing within the boundary wall of the cremation ground. The said order was confirmed vide order dated 24th January, 2018.

4. Since then, pleadings in the suit have been completed. The suit came up before this Court on 14th January, 2019 for framing of issues when on going through the plaint and having found the title claimed by the plaintiffs to be incongruous, it was enquired from the counsel for the plaintiffs as to how the plaintiff no.1 Society incorporated on 16th February, 2005 could claim title since 1947. Though the counsel for the plaintiffs on that date stated that the plaintiff no.1 Society was a successor of Kalkaji Welfare Association in existence since 1965 and before that it was a property of "few people" but it was observed that neither any sale deed from the "few people" in favour of Kalkaji Welfare Association nor any sale deed from Kalkaji Welfare Association in favour of the plaintiff no.1 Society had been pleaded. The counsel for the plaintiffs then argued that the plaintiffs claim title by adverse possession. However attention of the counsel for the plaintiffs was invited to the dicta of the Supreme Court in Mohan Lal Vs. Mirza Abdul Gaffar (1996) 1 SCC 639, Karnataka Board of Wakf Vs. Government of India (2004) 10 SCC 779, Mandal Revenue Officer Vs. Goundla Venkaiah (2010) 2 SCC 461 and Vidya Devi Vs. Prem Prakash (1995) 4 SCC 496 holding that the pleas of lawful title and title by adverse possession are mutually inconsistent, antithetical and cannot be taken together or even alternatively. Attention of the counsel for the plaintiffs was also invited to Sections 389 to 391 of the Delhi Municipal Corporation

Act, 1957 relating to burial grounds. On request of the counsel for the plaintiffs, the hearing was adjourned.

5. On 15th April, 2019, again after full arguments had been heard from the counsel for the plaintiffs, on request of the counsel for the plaintiffs the hearing was adjourned.

6. Though there was to be no further hearing today in terms of the last order aforesaid but the counsel for the plaintiffs has been further heard.

7. The counsel for the plaintiffs, at the outset, with reference to the order dated 14th January, 2019 has clarified that the plaintiffs are "not claiming ownership rights in the property". It is again stated that the subject land was a private land and stands vested in the plaintiff no.1 Society. Attention in this regard is drawn to the English translation of the Jamabandi of the land bearing Khasra No.624-625 at page 8 of the Part III- A file, with the land subject matter of Khasra No.624 being described in the said Jamabandi as open and the land subject matter of Khasra No.625 being described as mountain. However as per the counsel for the plaintiffs himself, the Jamabandi does not record the name of the former or the name of the present owner of the said land in Khasra No.624 and 625. In the absence of the Jamabandi showing ownership or bhumidhari rights with respect to the said land, the reliance thereon by the plaintiffs, is of no avail. The said documents nowhere advance the case of the plaintiffs, of being the owner/bhumidhar as per revenue record or of even being in possession of the land.

8. Rather, the land subject matter of Khasra No.624 in the revenue records has been described as „pond‟ and it appears that a water body

existed in Khasra No.624 and in place of which water body the cremation ground has been constructed.

9. Supreme Court, in relation to water bodies and encroachment of land of water bodies, has vide orders dated 7th September, 2018, 27th November, 2018 and 28th January, 2019 in Writ Petition (C) No.4677/1985 titled M.C. Mehta Vs. Union Of India issued directions for removal of encroachments therefrom and revival thereof.

10. The counsel for the plaintiffs has today argued that the land of the cremation ground was shamlat-deh land and qua which the Supreme Court in paras 2 and 23 of Jagpal Singh Vs. State of Punjab (2011) 11 SCC 396 held that the same can also be for use as cremation ground.

11. Even if the aforesaid contention of the counsel for the plaintiffs is to be accepted, as per the direction issued in Jagpal Singh supra, each State Government has to make a Committee to takeover such shamlat-deh land and to remove encroachments therefrom. Thus the said line of reasoning also does not advance the case of the plaintiffs and rather not only shows the plaintiffs to be not entitled to the declaration sought but also shows the plaintiffs being not entitled to injunction inasmuch as no injunction contrary to the direction of the Supreme Court in Jagpal Singh can be issued and committees constituted in pursuance whereto are seized of the matter.

12. Even otherwise, I have enquired from the counsel for the plaintiffs, how the plaintiffs can maintain this suit for declaration and permanent injunction, both of which fall within the domain of the Specific Relief Act, 1963, without being able to show any personal right to the property / land qua which such relief is claimed. Section 4 of the Act provides that such

reliefs can be granted only for the purposes of enforcing individual civil rights and not for the mere purpose of enforcing a penal law. Reference in this regard may be made to Surinder Nayyar Vs. South Delhi Municipal Corporation 2018 SCC OnLine Del 7108 and Rakesh Jain Vs. Mithilesh Mishra 2016 SCC OnLine Del 3246.

13. Once the counsel for the plaintiffs has today at the outset clarified that the plaintiffs are not claiming ownership rights, as the recording in order dated 14th January, 2019 appears to suggest, the plaintiffs can have no individual civil rights, for enforcing which this suit can be maintained. As far as the argument, of the subject land being private land and having vested in the plaintiffs, I have enquired from the counsel for the plaintiffs whether not any ownership or title in the land can be acquired either by lawful title or by adverse possession. Neither any averment of the plaintiffs in the plaint nor any argument made over the three dates aforesaid has shown any lawful title or a plea of adverse possession.

14. Rather, the counsel for the plaintiffs during the hearing today has argued that the plaintiffs applied to the defendant no.4 DDA for allotment of the said land to the plaintiffs and has in this context drawn attention to page 151 of Part-IIIA file. Once it is so, the same alone negates any claim of the plaintiffs of having lawful title or title by adverse possession. In fact the counsel for the plaintiffs states that the plaintiffs are not claiming adverse possession as against the Government.

15. The counsel for the plaintiffs has also contended that the defendant no.4 DDA has no right to the subject land.

16. The title if any of the defendant no.4 DDA to the land is not to be adjudicated in the present suit and it is the right and title of the plaintiffs qua which declaration is claimed which is for adjudication. Once the averments in the plaint do not show any semblance of right of which declaration is sought, issues are not to be mechanically framed in the suits and the suits not to be mechanically posted for recording evidence when the same outcome which is to follow after trial is writ large today itself. Order XIV Rule 1 of the Code of Civil Procedure, 1908 (CPC) prescribes the pleas on which issues are to be framed and the pleas in the plaint do not constitute a material plea on which an issue qua the relief of declaration can be sought or framed by the Court. Reference in this regard may be made to Zulfiquar Ali Khan Vs. Straw Products Limited 2000 SCC OnLine Del 577, Bhupinder Jit Singh Vs. Sonu Kumar 2017 SCC OnLine Del 11061, Kawal Sachdeva Vs. Madhu Bala Rana 2013 SCC OnLine Del 1479 and Abbot India Ltd. Vs. Rajinder Mohindra 2014 SCC OnLine Del 231.

17. For the sake of record I may also mention that the counsel for the plaintiffs has taken me through sub paras (i) to (viii) of para 6 of the plaint but need is not felt to reproduce the same; suffice it is to state that the same also do not disclose any right of the plaintiffs to remain on the land and which right can be declared.

18. As far as the relief claimed by the plaintiffs of ownership of superstructure is concerned, merely because the plaintiffs may have created a superstructure on the land belonging to another would not entitle the plaintiffs to remain in possession of the land. At best the plaintiffs would

be entitled to remove the rubble of the said superstructure upon the same being demolished.

19. Thus the suit for the relief claimed of declaration, on the averments in the plaint is not found to be maintainable and need to put the suit to trial therefor is not felt.

20. The counsel for the plaintiffs has then contended that the plaintiffs being in settled position of the land are entitled to a decree for permanent injunction.

21. The counsel for the defendant no.4 DDA in this context has drawn attention to the paragraphs of the plaint where the plaintiffs themselves have pleaded of the defendant no.4 DDA having taken action even in 2004 i.e. before the incorporation of the plaintiff no.1 Society, for demolishing the boundary wall etc. of the property and for taking charge of the property. Though I have hereinabove held that the title of the defendant no.4 DDA is not to be gone into but I may record that it is the contention of the counsel for the defendant no.4 DDA that the land was acquired under the Land Acquisition Act, 1894 and the defendants have placed the copy of the Award No.2038 dated 30th October, 1967 of compensation determined for the land on record.

22. The counsel for the plaintiffs in this context has argued that the Award, copy of which has been filed, does not show to whom the compensation of the land in Khasra No.624 and 625 was paid. The counsel for the plaintiffs in this context has also argued that under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, the acquisition had lapsed.

23. The argument that the acquisition has lapsed is in admission of the land having been acquired.

24. Thus the position vis-à-vis the claim for permanent injunction is that the land is public land and the plaintiffs are rank trespassers/encroachers thereon.

25. Once it is, so the plaintiffs, who have not been able to make out any semblance of a title and as per whose averments the possession has also not been settled on account of threats of the defendant no.4 DDA and action carried out by the defendant no.4 DDA even in 2004, the plaintiffs are not entitled to permanent injunction also.

26. It has been held in S.P. Chengalvaraya Naidu Vs. Jagannath (1994) 1 SCC 1, Dalip Singh Vs. State of U.P. (2010) 2 SCC 114, Bandhua Mukti Morcha Vs. Union of India (1984) 3 SCC 161 and Ashok Kapoor Vs. Municipal Corporation of Delhi 2014 SCC OnLine Del 2523 that the process of the Court cannot be permitted to be abused by such rank tresspassers/encroachers of land and for defeating the purpose for which the land was acquired.

27. I may add that if at all the defendant no.4 DDA as the government feels that there is a need for cremation ground, it will always be open to the defendant no.4 DDA/Government to provide for use thereof under its own powers. Merely because the plaintiffs claim to be managing the cremation ground also is thus no ground for allowing the plaintiffs to appropriate public property for their own commercial benefit as is evident from the pleas of letting out of a shop and realisation of rent therefrom.

28. Moreover, from the revenue records relied on by the plaintiffs themselves the land of which plaintiffs are in possession and of which possession is sought to be protected is of a water body and conservation of which is of utmost importance for maintaining the ecological balance of a city and directions for revival of which water bodies have been issued. The defendant no.4 DDA as a statutory body is itself liable to restore the said water body and can always make arrangement for cremation ground elsewhere. In fact the defendant no.4 DDA is directed to investigate the said aspect further and take steps in accordance with law.

29. The suit thus fails and is dismissed. However, no costs.

Decree sheet be prepared.

RAJIV SAHAI ENDLAW, J MAY 15, 2019 „pp‟ (Corrected and released on 30th May, 2019).