Delhi High Court
Delhi Development Authority vs Kamal Singh & Anr on 1 December, 2020
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Digitally Signed By:DINESH
SINGH NAYAL
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$~4 to 6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 1st December, 2020
+ RSA 56/2020, CM APPLs. 12295/2020, 12297/2020 & 30781/2020
DELHI DEVELOPMENT AUTHORITY ..... Appellant
Through: Mr. Sanjeev Sagar, Standing Counsel
with Ms. Nazia Parveen, Advocate
(M-9278693021).
versus
KAMAL SINGH & ANR ..... Respondent
Through: Mr. Manohar Lal & Mr. Chaitanya
Rohilla, Advocates for R-1. (M-
9810510145)
5 WITH
+ RSA 57/2020 & CM APPLs. 12573-74/2020
DELHI DEVELOPMENT AUTHORITY ..... Appellant
Through: Mr. Sanjeev Sagar, Standing Counsel
with Ms. Nazia Parveen, Advocate.
versus
JAI BHAGWAN & ANR ..... Respondent
Through: Mr. S.S. Gulia, Advocate (M-
9958446751).
6 AND
+ RSA 58/2020
DELHI DEVELOPMENT AUTHORITY ..... Appellant
Through: Mr. Sanjeev Sagar, Standing Counsel
with Ms. Nazia Parveen, Advocate.
versus
HARI CHAND ..... Respondent
Through: Mr. Manohar Lal & Mr. Chaitanya
Rohilla, Advocates for R-1.
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. This hearing has been done by video conferencing.
2. The present second appeals have been filed by the Delhi Development
Authority ("DDA"), challenging the impugned orders dated 25th July, 2019
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passed by the ld. District Judge/Appellate Court, in appeals filed by the
Appellants/Defendants against the impugned judgments/decrees dated 26 th
December, 2012 passed in the civil suits filed by the Respondents/Plaintiffs.
3. The question raised by Mr. Sagar, ld. Standing Counsel for DDA in
these second appeals is that in view of the provisions of Delhi Land Reforms
Act, 1954 (hereinafter 'DLR Act') as well as Order II Rule 2 CPC, the civil
suits which were filed by the Respondents were not maintainable before a
Civil Court and accordingly a permanent injunction ought not to have been
granted. He further submits that the Appellate Court and the Original Court
have accordingly erred in law in entertaining the suits and passing the
impugned orders.
4. On the other hand, the submission of Mr. Manohar Lal, ld. counsel for
the Respondents in RSA 58/2020, is that on the date when the threat of
dispossession existed, the proceedings under Section 74(4) of the DLR Act,
were not pending before the Revenue Court, and hence the civil suit was
maintainable. In any event, he submits on the basis of the decision in Ashok
Kumar & Ors. v. Munni Devi (Smt.) & Ors. [RFA No. 621/2003 & RFA
No. 14/2004, decided on 5th March, 2012], that a suit for declaration and
injunction is maintainable in the Civil Court. In RSA 56/2020, the
proceedings under Section 74(4) were pending when the suit was filed.
5. In a similar manner, Mr. S.S Gulia, ld. counsel for the Respondents in
RSA 57/2020, submits that the dispossession cannot be effected while the
proceedings are pending before the Revenue Court.
6. Mr. Sagar, ld. counsel however points out that civil suits are barred
under the provisions of the DLR Act. He further submits that the suits were
also barred under Order II Rule 2 CPC and since the title to the property is
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with the DDA, no relief ought to have been granted. Moreover, the granting
of a permanent injunction would be in the teeth of the proceedings pending
before the Revenue Courts. The suits were totally untenable and not
maintainable.
7. The brief background of these petitions is that the Respondents as
well as other similarly placed parties claim to be Assamis of the suit land by
virtue of an allotment resolution of 1974 and had filed an application under
Section 74(4) of the DLR Act before the Revenue Court for being declared
as Bhumidars over the suit property. During the pendency of this
application, the suit land was placed at the disposal of DDA vide notification
no. FI (172)/LM/L&B/2001 dated 19th August, 2002. The land was handed
over symbolically to DDA by the Building Development Officer (BDO)
vide order dated 13th October, 2003 and then transferred to the Engineering
Wing of DDA on 17th May, 2004.
8. Thereafter, various persons who were similarly placed to the
Respondents, challenged the order of 13th October, 2003 by way of W.P(C)
13061-66/2004 titled Ram Singh & Ors. v. Gaon Sabha Nasirpur,
Najafgarh, New Delhi and the same was disposed of vide order dated 11th
August, 2004. The operative portion of the said order reads as under:
"Writ petition is accordingly disposed of holding
that petitioners possession in respect of the
aforesaid land cannot be disturbed till their
application under Section 74(4) is disposed of. If
decision is in favour of the petitioner, possession
would not be disturbed. Only if the decision is
against the petitioner and subject to their right to
challenge the order and on the proceedings attaining
finality against the petitioner alone can petitioner
possession be disturbed by the respondents."
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9. In effect, the above order protected the possession of persons like the
Respondents, who were in possession of the suit land during the pendency of
the proceedings under Section 74(4) of the DLR Act. It is only after the said
proceedings attain finality and upon the DDA succeeding, that their
possession could be disturbed.
10. Thereafter, several of the affected parties contested their applications
before the Revenue Court under Section 74(4) of the DLR Act, which were
rejected by the Revenue Assistant by order dated 15 th February, 2005. An
appeal was also filed against the order of the Revenue Assistant before the
Deputy Commissioner and a revision was filed before the Financial
Commissioner. In some cases, like the present three, civil suits were also
filed by the parties for permanent injunction, restraining DDA from
interfering with the possession of the land.
11. In the civil suit being Suit Nos. 425389/2016, ld. SCJ granted a decree
of permanent injunction in favour of the Respondents herein vide impugned
order dated 26th December, 2016 in the following terms:
"A decree of permanent injunction is granted in
favour of plaintiffs and against the defendant
thereby restraining the defendant from interfering
with the possession of the plaintiffs over the suit
land measuring 4 bigha 16 biswa in khasra no.
393, Village Nasirpur, New Delhi without due
process of law.
There shall be no order as to costs.
Given under my hand and the seal of this court on
26th day of December, 2016."
12. Similar orders were passed in Civil Suits No. 426607/2016 and
426798/2016 as well.
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13. These orders were appealed against by the DDA in RCA Nos.
41/2017, 40/2017 and 02/2018. However, vide impugned orders dated 25th
July, 2019, the appeals have been dismissed and the Trial Court's orders
have been upheld. Hence these second appeals.
14. The only question that arises herein is whether there is any question of
law that arises that requires adjudication in these second appeals. Mr. Sagar,
ld. Standing Counsel for DDA submits that the civil suits filed by the
Respondents were not maintainable, in view of the provisions of the DLR
Act, wherein a remedy of civil suit does not lie before the Civil Courts. He
relies upon the following three judgments to argue that the suits were in fact
not maintainable and that in any event, the order in the W.P(C)13061-
66/2004 would be even for the benefit of the Respondents herein:
• Ashok Kumar & Ors. v. Munni Devi & Ors. (supra)
• Hatti v. Sunder Singh [1970 (2) SCC 841]
• National Institute of Mental Health & Neuro Sciences v. C.
Parameshwara [(2005) 2 SCC 256]
15. A perusal of the order dated 11th August, 2004 passed by the Writ
Court in W.P(C)13061-66/2004 clearly shows that the possession of none of
the persons in possession can be disturbed till their application under Section
74(4) of the DLR Act is disposed of. In case of RSA 58/2020, the Section
74(4) application was not pending on the date when the suit was filed.
However, in the other two appeals, the Section 74(4) applications were
pending on the dates when the suit was filed.
16. The question of law sought to be raised as to the maintainability of the
suit is no longer res integra and has already been adjudicated in several
judgments, including that of the Supreme Court and this Court. In Hatti v.
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Sunder Singh (supra), the Supreme Court had clearly observed and laid
down the boundaries of jurisdiction between the Revenue Courts and Civil
Courts. It was held in this judgment that the DLR act is complete code in
itself. The observations of the Supreme Court are as under:
"...The Act is a complete Code under which it is
clear that any one, wanting a declaration of his
right as a Bhumidar, or aggrieved by a declaration
issued without notice to him in favour of another,
can approach the Revenue Assistant under Item 4
of the First Schedule and this he is allowed to do
without any period of limitation, because he may
not be aware of the fact that a declaration has
been issued in respect of his holding in favour of
another. A declaration by a Gaon Sabha of the
right of any person can also be sought without any
period of limitation. If there is dispute as to
possession of agricultural land, remedy has to be
sought under Section 84, read with Item 19 of the
First Schedule. All the reliefs claimed by the
respondent in the present suit were, thus, within
the competent jurisdiction of the Revenue
Assistant, and the Civil Court had no jurisdiction
to entertain the suit."
17. Similarly, a ld. Single Judge of this Court in Ashok Kumar & Ors. v.
Munni Devi & Ors. (Supra) has considered Sections 16 and 185 of the DLR
Act as also the judgment of the Supreme Court in Hatti v. Sunder Singh
(Supra). The Court, has observed as under:
"5. In my opinion, the trial Court has fallen into a
grave error in holding that the Civil Courts did not
have jurisdiction in view of Section 185 of the Act.
Section 185 has already been reproduced above
and which Section shows that the Revenue Courts
have jurisdiction to try such suits which are
mentioned in columns 2 and 3 of the Schedule I of
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the Act, and it is only with respect to such suits
that the jurisdiction of the Civil Courts will be
barred. The sections and type of the suits which
are mentioned in columns 2 & 3 of the Schedule I
of the Act, do not cover suits such as the subject
suit for declaration, injunction and for
cancellation of a sale deed/power of attorney on
the ground of the same having been forged and
fabricated. Such causes of action/reliefs of
declaration and injunction which pertain to
invalidity of the title documents which are said to
have been got executed on the basis of a forged
and fabricated General Power of Attorney are not
covered under any of the Sections under columns 2
& 3 of Schedule I and they can be thus decided by
a Civil Court. A reference to columns 2 and 3 of
Schedule I of the Act shows that in none of the
Sections or the description of suits, mentioned in
Columns 2 and 3 of the Schedule I respectively, the
subject suit would be covered. The only sections
which can be said to be somewhat related to the
issues/causes of action/reliefs in the suit are
Sections 13 and 104. Section 13 pertains to an
application to regain possession after bhumidari
rights are got declared and for which period of
limitation is one year from the commencement of
the Act. The Act commenced in the year 1954 and
the subject suit for declaration and injunction
cannot be said to be pertaining to Section 13 of the
Act, and also because no declaration of bhumidari
rights envisaged under Section 13 is in issue in the
subject suit. Therefore, the subject legal
proceedings are not covered under serial No. 3 of
the Schedule I which pertains to Section 13, being
an application to regain possession. So far as the
Section 104 is concerned which is the subject
matter of serial No. 28 of the Schedule I, the said
Section pertains to a declaratory suit which is filed
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on behalf of Gaon Sabha against a person
claiming entitlement to any right to the land which
is the subject matter of the Act. Obviously, the
subject suit filed by the private persons is not a suit
for declaration, covered by Section 104.
A reference to all other sections which are the
subject matter of column 2 of the Schedule I and
the description of such suits under those Sections
as stated in column 3 of Schedule I shows that
there is no section for filing of a suit of the nature
of the suit in question. A reference to the column 2
and the description of the Sections in column 3
shows that the proceedings which are the subject
matter of the Revenue Courts are those
proceedings, which are with respect to either
declaration of Bhumidari rights (as distinguished
from inter se dispute of claim of
ownership/bhumidari rights on account of transfer
by title deeds/sale deeds including by forging a
power of attorney), suits which are with respect to
exchange of Bhumidari land or for partition of a
bhumidari land or suit for ejectment filed by an
Asami or a suit for injunction or damage caused to
a holding of a person etc etc. These suits which the
Civil Courts are barred from taking cognizance of
are basically suits of a bhumidhar or Asami or
Gaon Sabha and that too provided they are first of
all the subject matter of the Sections which are
stated in Column 2 of the Schedule I."
18. From the above, it is clear that the questions of law sought to be
raised have already been settled by various decisions as set out above and
simple suits for injunction would not be maintainable. Thus, insofar as
declaration of bhumidari rights is concerned and possession in respect
thereof, Revenue Courts have jurisdiction. It is only in cases which involve
declaratory relief in respect of documents of title, that a suit for declaration
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would lie.
19. A perusal of the relief sought in the present suits shows that all the
Respondents have merely sought permanent injunction against the DDA
from interfering in their possession, in any manner. For example, the relief
sought in CS(OS) No. 425389/16, which is impugned in RSA 56/2020, is as
under:
"It is therefore prayed to the Hon'ble Court that
the defendants or anybody purporting to be
working under them may kindly be restrained from
interfering with the possession of the plaintiffs in
the land admeasuring 4 Bigha 16 Biswa allotted to
the plaintiff for cultivation out of khasra number
393 min in the area of village Nasir Pur, New
Delhi.
Any other or further orders as this Hon'ble Court
may deem fit in the facts and circumstances of the
case may also be passed in favour of the plaintiffs
and against the defendant.
Cost of the suit may also be awarded in favour of
the plaintiffs. "
20. These suits, in view of the settled legal position are not maintainable.
However, the Respondents would be entitled to the benefit of the order
passed in the writ petition being W.P(C)13061-66/2004 as it is unanimously
agreed that the Respondents are similarly placed to the Petitioners in the said
writ petitions. A perusal of the impugned injunction orders also shows that
the effect of the same is that the Respondents cannot be dispossessed, until
and unless the proceedings before the Revenue Authorities have attained
finality, which is exactly the order passed in W.P.(C) 13061-66/2004. It is
submitted by ld. counsels for parties that the Section 74(4) proceedings in
respect of all the Respondents are still pending.
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21. In view of the above discussion, the appeals are disposed of with the
observation that the order passed in W.P.(C) 13061-66/2004 as set out in
paragraph 8 above would enure to the benefit of and be applicable to the
present Respondents as well. The said order is reproduced once again below
for ready reference:
"Writ petition is accordingly disposed of holding
that petitioners possession in respect of the
aforesaid land cannot be disturbed till their
application under Section 74(4) is disposed of. If
decision is in favour of the petitioner, possession
would not be disturbed. Only if the decision is
against the petitioner and subject to their right to
challenge the order and on the proceedings
attaining finality against the petitioner alone can
petitioner possession be disturbed by the
respondents."
22. The questions of law no longer require adjudication. The present
second appeals, along with all, pending applications are disposed of.
PRATHIBA M. SINGH
JUDGE
DECEMBER 1, 2020
Rahul /A
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