Delhi High Court
Jai Gopal Bedi Through Lrs Shri ... vs Delhi Development Authority & ... on 14 September, 2020
$~15 to 20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 14.09.2020
+ W.P. (C) 4426/2020
JAI GOPAL BEDI THROUGH
LRS SHRI ANIL BEDI .....Petitioner
Through: Mr N.P. Singh and Mr Shekhar
Budakoti, Advocates.
versus
DELHI DEVELOPMENT AUTHORITY & ANR. ..... Respondents
Through: Mr Dhanesh Relan, Standing Counsel
for DDA.
+ W.P. (C) 4427/2020
PARAMJEET SINGH .....Petitioner
Through: Mr N.P. Singh and Mr Shekhar
Budakoti, Advocates.
versus
DELHI DEVELOPMENT AUTHORITY & ANR. ..... Respondents
Through: Mr Dhanesh Relan, Standing Counsel
for DDA.
+ W.P. (C) 4428/2020
MAHINDER SINGH, NOW DECEASED,
THROUGH LRS SHRI BALWINDER SINGH .....Petitioner
Through: Mr N.P. Singh and Mr Shekhar
Budakoti, Advocates.
versus
DELHI DEVELOPMENT AUTHORITY & ANR. ..... Respondents
Through: Mr Dhanesh Relan, Standing Counsel
for DDA.
+ W.P. (C) 4429/2020
SHRI JAGJEET SINGH .....Petitioner
Through: Mr N.P. Singh and Mr Shekhar
Budakoti, Advocates.
versus
DELHI DEVELOPMENT AUTHORITY & ANR. ..... Respondents
Through: Mr Dhanesh Relan, Standing Counsel
for DDA.
+ W.P. (C) 4436/2020
SHRI PARVEEN KAMRA .....Petitioner
Through: Mr N.P. Singh and Mr Shekhar
Budakoti, Advocates.
versus
DELHI DEVELOPMENT AUTHORITY & ANR. ..... Respondents
Through: Mr Dhanesh Relan, Standing Counsel
for DDA.
+ W.P. (C) 4438/2020
SHRI RAM AVTAR (NOW DECEASED
THROUGH LRS SHRI BRIJ MOHAN .....Petitioner
Through: Mr N.P. Singh and Mr Shekhar
Budakoti, Advocates.
versus
DELHI DEVELOPMENT AUTHORITY & ANR. ..... Respondents
Through: Mr Dhanesh Relan, Standing Counsel
for DDA.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J (Oral)
W.P. (C) 4426/2020, CM APPLs. 15937/2020 & 18511/2020
W.P. (C) 4427/2020, CM APPLs. 15941/2020 & 18513/2020
W.P. (C) 4428/2020, CM APPLs. 15945/2020 & 18514/2020
W.P. (C) 4429/2020, CM APPLs. 15950/2020 & 18519/2020
W.P. (C) 4436/2020, CM APPLs. 15973/2020 & 18510/2020
W.P. (C) 4438/2020, CM APPLs. 15980/2020 & 18512/2020
1. The hearing was conducted through video conferencing.
2. The petitioners impugn the common order dated 03.07.2020 passed by the
learned District Judge, Tis Hazari Courts, Delhi (West), Delhi in PPA
Nos. 13/2016, 14/2016, 15/2016, 16/2016, 17/2016 and 18/2016, under
Section 9 of the Public Premises (Eviction of Unauthorized Occupants)
Act, 1971 ('the PP Act'). The said order upheld the eviction order dated
22.8.2016, passed by the Estate Officer, under Section 5(1) of the PP Act.
3. It is the contention of the petitioners that the impugned order is replete
with errors, inasmuch as:
(i) The Delhi Development Authority ('DDA') never proved that it
was the owner of the land.
(ii) The DDA knew from 1984 itself that the petitioners were in
possession of the land, and therefore, its cause for seeking
eviction in the year 2016 is dubious. Furthermore, if the first
notice was issued in the year 1984 and if the DDA knew all
along that the petitioners were in possession of the land, they
ought to have taken immediate action for eviction, as the
petitioners were occupying the property despite the full
knowledge of the DDA.
(iii) The land does not vest with the DDA because there was no
notification under Section 22 of the Delhi Development Act,
1957 ('the DDA Act').
4. The learned counsel for the petitioners emphasises that the DDA
permitted the petitioners to continue in possession of the land from 1984
onwards, therefore impliedly it condoned their possession: in a way
viewing them as 'authorised' occupants. Therefore, now after 37 years to
suddenly call them unauthorised occupants would need an adjudication
of rights accrued in favour of the petitioners by 'continuous permissive
user' beyond 30 years. In the documents presented before the Estate
Officer, the petitioners have been shown as encroachers on DDAs land,
so DDA knew full well that they were 'encroachers', why did it allow
them to stay on for 37 years and to build large permanent buildings,
which have been abodes for many families for over two generations?
why did the DDA not take any action to any evict them, right from the
beginning of the alleged encroachment? Not having done so within the
prescribed period of eviction of unauthorised occupants, bars the present
action by limitation. The petitioners rely upon the dicta of the Supreme
Court in Ravinder Kaur Grewal & Ors. v Manjit Kaur and Ors 2019
SCC Online SC 975 and argues that eviction proceedings after the
passage of 32 years are clearly barred by limitation. In the said
judgment, it has been held, inter alia, as under:
"...1. The question of law involved in the present matters
is quite significant. Whether a person claiming the title by
virtue of adverse possession can maintain a suit under
Article 65 of Limitation Act, 1963 (for short, "the Act")
for declaration of title and for a permanent injunction
seeking the protection of his possession thereby
restraining the defendant from interfering in the
possession or for restoration of possession in case of
illegal dispossession by a defendant whose title has been
extinguished by virtue of the plaintiff remaining in the
adverse possession or in case of dispossession by some
other person? In other words, whether Article 65 of the
Act only enables a person to set up a plea of adverse
possession as a shield as a defendant and such a plea
cannot be used as a sword by a plaintiff to protect the
possession of immovable property or to recover it in case
of dispossession. Whether he is remediless in such a case?
In case a person has perfected his title based on adverse
possession and property is sold by the owner after the
extinguishment of his title, what is the remedy of a person
to avoid sale and interference in possession or for its
restoration in case of dispossession?
2. Historically, adverse possession is a pretty old concept
of law. It is useful but often criticised concept on the
ground that it protects and confers rights upon
wrongdoers. The concept of adverse possession appeared
in the Code of Hammurabi approximately 2000 years
before Christ era. Law 30 contained a provision
"If a chieftain or a man leaves his house, garden,
and field .... and someone else takes possession of
his house, garden and field and uses it for three
years; if the first owner returns and claims his
house, garden, and field, it shall not be given to
him, but he who has taken possession of it and used
it shall continue to use it."
However, there was an exception to the aforesaid rule:
for a soldier captured or killed in battle and the case of
the juvenile son of the owner. In Roman times, attached to
the land, a kind of spirit that was nurtured by the
possessor. Possessor or user of the land was considered
to have a greater "ownership" of the land than the titled
owner.
xxx
59. Possession is the root of title and is right like the
property. As ownership is also of different kinds of viz.
sole ownership, contingent ownership, corporeal
ownership, and legal equitable ownership. Limited
ownership or limited right to property may be enjoyed by
a holder. What can be prescribable against is limited to
the rights of the holder. Possession confers enforceable
right under Section 6 of the Specific Relief Act. It has to
be looked into what kind of possession is enjoyed viz. de
facto i.e., actual, „de jure possession‟, constructive
possession, concurrent possession over a small portion of
the property. In case the owner is in symbolic possession,
there is no dispossession, there can be formal, exclusive
or joint possession. The joint possessor/co-owner
possession is not presumed to be adverse. Personal law
also plays a role to construe nature of possession.
60. The adverse possession requires all the three classic
requirements to co-exist at the same time, namely, nec-vi
i.e. adequate in continuity, nec-clam i.e., adequate in
publicity and nec-precario i.e. adverse to a competitor, in
denial of title and his knowledge. Visible, notorious and
peaceful so that if the owner does not take care to know
notorious facts, knowledge is attributed to him on the
basis that but for due diligence he would have known it.
Adverse possession cannot be decreed on a title which is
not pleaded. Animus possidendi under hostile colour of
title is required. Trespasser‟s long possession is not
synonym with adverse possession. Trespasser‟s
possession is construed to be on behalf of the owner, the
casual user does not constitute adverse possession. The
owner can take possession from a trespasser at any point
in time. Possessor looks after the property, protects it and
in case of agricultural property by and the large concept
is that actual tiller should own the land who works by dint
of his hard labour and makes the land cultivable. The
legislature in various States confers rights based on
possession.
61. Adverse possession is heritable and there can be
tacking of adverse possession by two or more persons as
the right is transmissible one. In our opinion, it confers a
perfected right which cannot be defeated on re-entry
except as provided in Article 65 itself. Tacking is based on
the fulfilment of certain conditions, tacking maybe by
possession by the purchaser, legatee or assignee, etc. so
as to constitute continuity of possession, that person must
be claiming through whom it is sought to be tacked, and
would depend on the identity of the same property under
the same right. Two distinct trespassers cannot tack their
possession to constitute conferral of right by adverse
possession for the prescribed period.
62. We hold that a person in possession cannot be ousted
by another person except by due procedure of law and
once 12 years' period of adverse possession is over, even
owner's right to eject him is lost and the possessory owner
acquires right, title and interest possessed by the outgoing
person/owner as the case may be against whom he has
prescribed. In our opinion, consequence is that once the
right, title or interest is acquired it can be used as a
sword by the plaintiff as well as a shield by the defendant
within ken of Article 65 of the Act and any person who has
perfected title by way of adverse possession, can file a suit
for restoration of possession in case of dispossession. In
case of dispossession by another person by taking law in
his hand a possessory suit can be maintained under
Article 64, even before the ripening of title by way of
adverse possession. By perfection of title on
extinguishment of the owner‟s title, a person cannot be
remediless. In case he has been dispossessed by the owner
after having lost the right by adverse possession, he can
be evicted by the plaintiff by taking the plea of adverse
possession. Similarly, any other person who might have
dispossessed the plaintiff having perfected title by way of
adverse possession can also be evicted until and unless
such other person has perfected title against such a
plaintiff by adverse possession. Similarly, under other
Articles also in case of infringement of any of his rights, a
plaintiff who has perfected the title by adverse possession,
can sue and maintain a suit.
63. When we consider the law of adverse possession as
has developed vis-à-vis to property dedicated to public
use, courts have been loath to confer the right by adverse
possession. There are instances when such properties are
encroached upon and then a plea of adverse possession is
raised. In Such cases, on the land reserved for public
utility, it is desirable that rights should not accrue. The
law of adverse possession may cause harsh consequences,
hence, we are constrained to observe that it would be
advisable that concerning such properties dedicated to
public cause, it is made clear in the statute of limitation
that no rights can accrue by adverse possession.
64. Resultantly, we hold that decisions of Gurudwara
Sahab v. Gram Panchayat Village Sirthala (supra) and
decision relying on it in State of Uttarakhand v. Mandir
Shri Lakshmi Siddh Maharaj (supra) and Dharampal
(dead) through LRs v. Punjab Wakf Board (supra) cannot
be said to be laying down the law correctly, thus they are
hereby overruled. We hold that plea of acquisition of title
by adverse possession can be taken by plaintiff under
Article 65 of the Limitation Act and there is no bar under
the Limitation Act, 1963 to sue on aforesaid basis in case
of infringement of any rights of a plaintiff.
65. Let the matters be placed for consideration on merits
before the appropriate Bench..."
5. Mr. Dhanesh Relan, the learned Standing Counsel for the DDA, submits
that this case has a long and chequered history. The land had been
acquired by the Government of India (GoI) under the Land Acquisition
Act, 1894 ('LAA'). The Gazette notification dated 02.06.1970 in this
regard, has been annexed to the petition as Annexure P-3. Thereafter, the
land was transferred to the DDA for an amount of Rs.30 crores vide
letter dated 02.09.1982. The said document clearly acknowledges that
there was some encroachment on the land in question. The particulars of
the suit land are mentioned at Sl.No.1 of the possession letter dated
02.09.1982, as land behind Bungalow Plot No.33 to 36, South Patel
Nagar, New Delhi, measuring 845 sq. yards. The said land is marked as
encroached upon by temporary huts, khokhas and workshops. The
possession letter further specifies that these encroachments are occupied
by D.S. Automobiles, Parko Motors, Gurgachan Automobiles, Niranjan
Automobiles, Birdi Motors, Chandro, Payara Singh, Bachchan Singh,
Dwarka Dass, Babu Lal Singh and others.
6. An order was passed by this Court in W.P.(C) No.16/2009 on
20.10.2009, observed as under:
"1. Perusal of the record shows that respondent no. 3
escaped service while respondent no. 4 stand served. In
this background, they have been duly noticed in the matter.
None appears on their behalf nor counter affidavit has
been filed.
In this view of the matter, the case qua respondent nos. 3
and 4 is proceeded ex-parte.
2. The petitioners in this writ petition have claimed to have
been inducted as tenants of one Sh. Narain Singh on
different portions of what has been numbered as plot no.
3400, Ranjeet Nagar, Near Pusa Gate, New Delhi. It is
further submitted that Sh. Narain Singh has expired and is
survived by his sons Sh. Shiv Charan Singh, Sh. Rounaq
Singh and Sh. Balwant Singh (since expired in 1981).
3. The petitioners have submitted that the Municipal
Corporation of Delhi i.e. respondent no. 1 herein has filed
eviction petition under section 4, 5 and 7 of the Public
Premises (Eviction of Unauthorised Occupants) Act, 1972
before the Estate Officer, MCD against the petitioners and
several others on 27th June, 1979. The MCD had claimed
herein that the said plot no. 3400 stood transferred to it
by the Ministry of Rehabilitation through a lease deed
executed on 31st December, 1970 having retrospective
effect from 27th December, 1962. Claiming rights under
this lease deed, submitted by the MCD that the subject
property is a public premise within the meaning of the
expression as defined under sub- section (e) of section 2 of
the said enactment. Alongwith other persons arrayed in
these proceedings, it was asserted that the petitioners were
unauthorised occupants of the subject land within the
meaning of the expression under section 2(g) of the statute.
4. The petitioners appeared to have contested these
proceedings. My attention is drawn to an order dated 23rd
October, 1990 passed by the Estate Officer holding that
the subject premises did not fall within the ambit of public
premises under the provisions of 2(e) of the Act. In support
of the connivance recorded by the learned Estate Officer,
the principle ground for so holding by the Estate Officer is
premised on the fact that there was no site plan with the
lease deed which has been sought to be proved by the
MCD. It has further been recorded in this order that
pursuant to a resolution dated 28th August, 1976 passed by
the Corporation, rates of damages sought to be recovered
from unauthorised occupants were not approved. The
petitioner appears to have also placed reliance on an
order of attachment of the rent passed by the MCD
towards payment of the arrears of house tax. Strong
reliance appears to have been placed on the fact that the
property was assessed to house tax and the petitioners
paid the house tax claimed by the MCD.
5. The order dated 23rd October, 1990 also reflects that
Sh. Narain Singh the claimed landlord had expired in the
year 1981. The petitioners had taken a plea before the
Estate Officer that for the reason that no succession
certificate was produced by his heirs, no rent has been
paid by them since his demise.
6. Yet another factor which has weighed with the Estate
Officer was the statement made by counsel for the MCD in
a suit which was stated to have been filed by Sh. Narain
Singh against the MCD in the year 1966. The order of
Estate Officer records that in this case Sh. M.L. Verma has
made a statement before Sh. H.L. Sub-Judge, Delhi that
the land in question has not been cleared by the MCD and
it was not interested in the land, the corporation would not
interfere in the land in question except under due process
of law till acquisition. The order of the Estate Officer
further records that the same counsel during cross-
examination has expressed being unaware of the lease
deed executed between L&DO and the MCD in the year
1970.
7. The appeal filed by the Municipal Corporation of Delhi
was dismissed by the learned Additional District Judge by
an order passed on 13th March, 1997. The MCD assailed
the two orders against it by way of W.P.(C) No. 3271/1998
which came to be dismissed for non-prosecution on 28th
July, 2003 by this court.
8. The present writ petition has been necessitated for the
reason that despite the foregoing facts, the Delhi
Development Authority appears to have intervened and is
taking action against the petitioners. It is contended by
learned counsel for the petitioner that the petitioner is
since paying rent to the legal heirs of the landlord Sh.
Narain Singh. It is further submitted that the Estate
Officer once having held that subject premises are not
public premises and such order having been contested and
the challenge thereto having been rejected, it is not open to
any person or authority to once gain reagitate the issue
and contend that the subject premises are public premises.
9. My attention has been drawn to a counter affidavit
which stands filed by the DDA arrayed as respondent no. 2
herein. The DDA has submitted that the subject land
occupied by the petitioners is government land and
belongs to the Delhi Development Authority. It is
submitted that the land was transferred to the Delhi
Development Authority by the Department of
Rehabilitation under the package deal vide a letter no.
4(19)/78-SS-II dated 2nd September, 1982. The land was
handed over to the representative of the DDA by the
Department of Rehabilitation on 8th May, 1984 and the
Additional Commissioner Land and Management; DDA;
Land Officer of the Ministry of Works and Housing were
notified by the same vide letter no. 1(20)SURVEY/CSC84
dated 25th June, 1984. Copies of these letters have been
placed on record by the respondent no. 2. It is to be noted
that the letter dated 2nd September, 1982 relates to
transfer of unutilised land to the DDA against payment of
public money to the tune of Rs.30 crores. The details of
land have been mentioned in annexure A to the affidavit.
10. Based on these pleas, the DDA has contended that the
petitioners are unauthorised occupants and encroachers
of the subject property since 1984 and are liable to be
evicted. A categorical stand is taken that the property falls
under the definition of public premises within the meaning
of the expression under section 2(e) of the act of 1972.
11. So far as the apprehensions of the petitioners are
concerned, it has been submitted that in the month of
October, 2008, the officials of the MCD went to the subject
land only in the capacity of the land owning agency
making an official visit to the premises. The DDA has
completely disassociated itself from the stand as taken by
the Municipal Corporation of Delhi with regard to the
land in question and has assailed the locus standi of the
MCD to make a claim inasmuch as the land deed stands
transferred to the Delhi Development Authority. The
counter affidavit has however filed by the DDA takes a
categorical stand that the petitioners are liable to be
evicted by due process of law.
12. Having considered the above noticed submissions, it
needs no elaboration that the petitioners can claim no
right further than an opportunity to contest a claim by
authority seeking the eviction. Prayer 2 in the writ petition
is to this effect. A vague allegation with regard to
connivance of respondent nos. 3 and 4 has been made.
Respondent nos. 3 and 4 are stated to be sons of late Sh.
Narain Singh. Respondent no.2 DDA who is claiming
right, title and interest in the land has completely
disassociated itself from the respondent nos. 3 and 4 as
well as from respondent no. 1.
13. So far as the proceedings which were initiated by the
Municipal Corporation of Delhi are concerned, the same
have stand long concluded in favour of the petitioners.
While there was no adjudication on the issue as to whether
the petitioners were in lawful occupation of the subject
premises, however the finding that the MCD had no claim
on the subject premises and the stand taken by the Estate
Officer in his order dated 23rd September, 1990 was
upheld in appeal before the learned District Judge.
Merely because a finding is recorded that the MCD has no
right, title and interest in the subject land would not
preclude the DDA from claiming ownership over the land.
There has been no adjudication over the claim of the DDA
in this regard. It is trite that both the DDA and the MCD
are statutory authorities who have been constituted by
separate enactments and are exercising jurisdiction under
statutory provisions.
14. The petitioner has placed strong reliance on several
documents to establish their occupation of the premises.
Such documents in any case would require to be proved
before the authority which shall considered a prayer made
by the DDA seeking evictment. The DDA has stated that it
is entitled to evict encroachers after following due process.
Such an action certainly cannot be faulted or interdicted.
Needless to say in case the DDA brings such proceedings,
it shall be open to the petitioner to take appropriate action
to defend itself. It is required to prove its claim by time as
well as occupation the subject premises. It needs no
elaboration that while the documents relating to a house
tax etc. may facilitate the petitioner in establishing a case
of possession, however make deposit of property tax by
itself does not create any right, title or interest in the
subject property.
15. Even the statement made by learned counsel for the
MCD, does not bind the DDA which was not a party to the
proceedings before the earlier Estate Officer or the
District Judge or this court. Orders, if any, passed against
the MCD do not bind the DDA which was not a party to
those proceedings and asserting an independent right.
In view of the above, having regard to the stand of the
respondents, no orders are called for. If and yet, the DDA
decides to take action against the petitioners, it shall
ensure that it abides by due process. This writ petition is
disposed of in the above terms..."
7. A review petition against this order was filed by Paramjit Singh, one of
the present petitioners, but it was dismissed.
8. Eviction proceedings were initiated by the DDA in the year 2010 under
the PP Act, and culminated in an eviction order which was challenged
by the petitioners before the learned District Judge. These first set of
proceedings were deemed non-est on account of a procedural error, as
noted in the order of the learned District Judge dated 12.05.2016.
9. Thereafter, a second round of proceedings were initiated by DDA under
the PP Act and the petitioners were issued notices under Section 4(1) in
the format prescribed. The petitioners filed their replies and on the
relevant date, they appeared before the Estate Officer. Their reply dated
02.08.2016 reads thus:
" Dated: 2.8.16
The Estate officer
DDA
Subhash Nagar New Delhi
Reg: Notice dated 11-7-16
No. THC/LM/22333 1238707 16/2/273
Sir,
Regarding the above said notice we have to say that
documents required by DDA are already submitted by as above.
Please take Note
Thankyou
Your faithfully
S/d
Anil Bedi on behalf of Paramjit & Ors.
Anil Bedi for Shri Jai Gopal & Vinay Bedi
S/d 9811199188
Jagjeet Singh - 9811303310
Paramjeet Singh - 25840482
Balwinder Singh - 9891088827
Joginder Singh - 9811206765..."
10.The Court would note that the section 4 notice clearly provided an
opportunity to the petitioners to appear before the authority under
section 4(2)(b)(ii); in effect, the noticees had the opportunity to be heard;
it was for the noticees to make their submissions as deemed appropriate.
What they said on the day is mentioned in the aforementioned letter; if
they wanted a separate hearing, they could have asked for it, nut they
chose not to. Be that as it may, it cannot be said that procedure
prescribed by the PP Act was breached or that the petitioners were not
granted the opportunity to be heard. An order of eviction was passed
under section 5(1) of the PP Act and impugned before the learned
District Judge. Thea appeal was dismissed, hence the present
proceedings.
11.The petitioners have claimed a right in the property as tenants of one
Narain Singh, and subsequently, of his legal heirs. They claimed to be
paying rent to the latter. Narain Singh seems to be shrouded in mystery,
as he has never appeared in any of the proceedings. Yet, the petitioners
continued to pay rent to him. His legal heirs were served notice in the
writ petition, but they chose to neither appear nor contest before the
court. The aforementioned order dated 20.10.2009 passed by this Court
in W.P.(C) No.16/2009, has held that as purported tenants, the
petitioners cannot claim rights beyond an opportunity to contest a claim,
made by the authority seeking their eviction. The order also noted that
payment of municipal taxes would show only that they were in
possession of the property; it would, however, not be any proof of a
substantive right or interest in the said property.
12. Narain Singh never proved his right, title or interest in the property. The
tenants now seek to challenge the very right of the government in the
land. They state that insofar as there is no Section 22 notification vesting
the land with the DDA, no right, title or interest is created in its favour.
As a consequence, they contend that the DDA has no right in the
property in the first instance, therefore without authority it cannot seek
to evict them and surely not after the petitioner have occupied the land
for the past 32 years. They also contend that the PP Act would not be
applicable.
13.However, Mr. Dhanesh Relan, the learned Standing Counsel for the
DDA, submits that there is no extraordinary delay in initiating eviction
proceedings. He submits that this issue has been duly addressed in the
now impugned order, which has held inter alia, as under:
".....PUBLIC PREMISES
19. First thing first, I shall deal with the plea by the
appellants that the property in question is not "public
premises". Section 2(g)(3) of the PP Act provides that the
expression "public premises‟ „in relation to the National
Capital Territory of Delhi means -
(ii) any premises belonging to the Delhi Development
Authority, whether such premises are in the possession of, or
leased out by, the said Authority;
20. The expression „belonging to‟ came up for discussion in
the case of Nandram vs. Union of India. 2000 SCC OnLine
Del 901, and a reference was invited to „Stround's Judicial
Dictionary‟ where the word "belonging" has been defined as
"property „belonging‟ to a person, having two general
meanings, (1) ownership, and/or (2) the absolute right of
user". The legal purport of such expression was dealt with as
under:
"By way of illustration, it has been stated that a road may
be said with perfect propriety to belong to a man who has
the right to use it as of right, although the soil does not
belong to him. In Raja Mohammad Amir Ahmad Khan v.
Municipal Board of Sitapur and another, AIR 1965 SC
1923, Apex Court held that though the expression
"belonging" no doubt is capable of denoting an absolute
title, it is nevertheless not confined to connoting that
sense. That word could signify even possession of an
interest less than that of full ownership. Scheme of the Act
is that it confers on the Estate Officer power to issue
notice to person, who are in unauthorized occupation of
any public premises to show cause, why an order of
eviction should not be made. "Unauthorized occupation"
under the Act, as defined in Section 2 (g) in relation to
any public premises means the occupation by any person
of the public premises without authority for such
occupation, and includes the continuance in occupation
by any person of the public premises after the authority
(whether by way of grant or any other mode of transfer)
under which he was allowed to occupy the premises has
expired or has been determined for any reason
whatsoever."
21. In the light of the said proposition of law, reverting to the
instant case, I have no hesitation in holding the subject
property is „belonging‟ to the DDA and the Ld. Estate Officer
has rightly relied on letter No. 4(19)/78-SS.II(Vol.ll) of the
Ministry of Supply and Rehabilitation, Government of India
dated 02.09.1982, whereby the Government of India under a
"package deal" transferred some un-utilized lands within the
Urban and Urbanizational Limits of Delhi/New Delhi under
the charge of Department of Rehabilitation to the Delhi
Development Authority viz. a total 1020 acres of
property/lands to the DDA on a payment of Rs. 30 crores and
the details of the 'surveyed‟ and „un-surveyed lands‟ were
given in Annexure „A‟ and Annexure „B‟. Para (3) of the said
letter dated 02.09.1982 reflects that the details of the lands
shown in the Annexures „A‟ & „B‟ were based on the result of
various joint surveys carried out by the officials of the
Department of Rehabilitation and the DDA from 1978
onwards. A bare perusal of Annexure „A‟ titled "Total
Undeveloped Lands" vide serial No.8 shows that in so far as
"Patel Nagar - East, West and South" is concerned total land
measuring 10.40 acres was transferred to the Delhi
Development Authority.
22. Further, there can hardly be any challenge to the findings
of the Ld. Estate Officer that vide letter No.
1(20)/Survey/CSC/84 dated 25.06.1984 issued by the
Department of Rehabilitation, Settlement Wing, Government
of India at Jaisalmer House, New Delhi, addressed to the
Land Commissioner (Land & Development), DDA, physical
possession of land in "East. South and West Patel Nagar"
had been transferred on 08.05.1984 and the tabular
annexures to the subsequent notification dated 25.06.1984
vide serial No. 1 shows that the lands behind Bungalow Plot
No. 33 to 36, South Patel Nagar measuring 845 Sq. yards on
inspection were found to have been encroached with
temporary huts, khokhas and workshops and the remarks
column read "occupied by D. S. Automobiles, Parko Motors,
Gurcharan Automobiles, Niranjan Automobiles Birdi Motors,
Chandro, Pyare Singh, Bachehan Singh, Dwarka Dass, Babu
Lai, Umrao Singh and others., which incidentally are some of
the appellants before us.
23. It is pertinent to mention here that the property in
question was subject matter of litigation in Writ Petition
(Civil) No. 16/2009 titled Paramjit Singh vs. MCD & Others
and perusal of the record of the Ld. Estate Officer would show
that an order dated 20.10.2009 was passed by Hon‟ble Ms.
Gita Mittal, Judge, High Court of Delhi, that would show that
initially the MCD had laid claim over the property in question
and the appellant Paramjeet Singh and others were sought to
be evicted by recourse to proceedings under the PP Act but
during the pendency of the Writ Petition, the DDA intervened
and referred to the aforesaid letter by the Government of
India dated 02.09.1982 and the subsequent notification
regarding handing over of the possession on 08.05.1984
confirmed vide letter dated 25.06.1984.
24. In para (11) of the judgment, it is recorded that the MCD
had merely went to the subject land for an official visit and
the DDA completely disassociated itself from the stand taken
by the MCD interalia assailing locus standi of the MCD and
vide para (12) of the said judgment, the Writ Petition was
disposed of holding that the documents placed on record by
the petitioners in the nature of continuous possession and
payment of property tax did not create any right, title or
interest in the subject property with the direction to the DDA
to take actions against the petitioners as per the due process
of law. It is also borne out from the voluminous record of the
case that a review petition No. 471/2009 was filed by the
petitioners and the same also came to be dismissed vide order
dated 03.12.2009 by the Hon‟ble Judge of the High Court of
Delhi.
25. It is in the said context that an earlier order dated
30.06.2010.wasi passed under Section 5(1) of the PP Act but
for some inexplicable reasons, the DDA kept the proceedings
in limbo for an inordinate long period of time, which probably
led to filing of another Writ Petition bearing No. 1752/2015
titled South Patel Nagar (IX Block) & Ranjit Nagar Residents
Welfare Association vs. DDA & Others, in which, it was
claimed that the appellants herein and some other persons
had encroached upon a piece of land which was meant for a
"park" and the same came to be disposed of vide order dated
23.02.2015 by Hon‟ble Mr. Justice Suresh Kait, Judge, High
Court of Delhi, whereby the DDA was directed to expedite the
disposal of the Eviction proceedings pending against the
appellants under the PP Act.
26. The sum and substance of the aforesaid discussion is that
consequent to the notification dated 03.09.1970 issued under
Section 6 & 7 of the LA Act, and presumably subsequent
proceedings under the LA Act, the subject property viz. 3400
measuring 845 Sq. yards (898/489 min) vested with the Chief
Commissioner of Delhi i.e. Central Government or the
Provincial Government of Delhi free from all encumbrances.
The land did not cease to be property of the Central
Government in the absence of delivery of possession or non
taking of actual or physical possession. It, therefore,
continued to be the property of the Central Government and
was therefore, "public-premises" within the meaning of
Section 2(e) of the Act. Even assuming for the sake of
convenience that no proceedings took place culminating in
award under Section 9, 11, 11A &12 of the LA Act subsequent
to notification dated 03.09.1970, the appellants have no locus
standi to challenge the acquisition proceedings at such a
belated stage.
14.Thereafter, the issue of unauthorised occupants was also dealt with
extensively, as under: -
"UNAUTHORISED OCCUPANTS
27. That brings us to another plea canvassed at the Bar that
the appellants are occupying the property as per the Ld.
Estate Officer as „encroachers‟ or "rank trespassers" and
thus it is urged that they as encroachers or trespassers per
se do not fall within the definition of the expression
"unauthorized occupation". The said expression is defined
vide section 2(g) of the PP Act as follows:
(g) "unauthorised occupation", in relation to any public
premises, means the occupation by any person of the public
premises without authority for such occupation, and
includes the continuance in occupation by any person of the
public premises after the authority (whether by way of grant
or any other mode of transfer) under which he was allowed
to occupy the premises has expired or has been determined
for any reason whatsoever.
28. In the case of Jain Ink Mfg. Co. v. LIC. (1980) 4 SCC
435 the said provision came up for discussion and it was
held that before a person could be said to be in an
unauthorized occupation, the Act required the following
conditions: '
(1) that the occupant had entered into possession before or
after the commencement of the Act,
(2) that he had entered into such possession otherwise than
under and in pursuance of any allotment, lease or grant.
29. Further, observing that section 2(g) is an inclusive
definition, it was held:-
"To begin with, it is manifest that Section 2(g) does not use
the word "possession" or the words "entry into possession"
at any point of time at all. The section merely requires
occupation of any public premises. Entry into possession
connotes one single terminus viz. the point of time when a
person enters into possession or occupies the property
whereas occupation is a continuous process which starts
right from the point of time when the person enters into
possession or occupies the premises and continues until he
leaves the premises. What is germane for the purpose of
interpretation of Section 2(g) is whether or not the person
concerned was in occupation of the public premises when
the Premises Act was passed."
30. In the light of the said proposition of law, reverting to
the instant case, it may be reiterated that the plea of the
appellants about their rightful occupation in the nature of
being tenant or owner of their respective portion was not
found sufficient enough so as to displace the claim of the
DDA to proceed against the appellants by due process of
law in Writ Petition No. 16/2009 vide order dated
20.10.2009 (review order dated 03.12.2009) followed by
directions in Writ Petition No. 1752/2015 vide order dated
23.02.2015. Indeed, apparently it appears that the Ld. Estate
Officer in the impugned common Eviction order dated
22.08.2016 has not cared to discuss the individual
objections of the appellants and a sweeping reasons are
assigned that the appellants have failed to show any right,
title or interest in the property in question. Be that as it may,
the foundation of such reasoning can be conveniently culled
out by this Court in appeal u/s 9 of the PP Act. It must be
appreciated that gist of the claim of appellant Paramjeet
Singh in PPA No. 16/2016 and that of the other appellants
in PPA Nos. 12/2016, 14/2016, 15/2016, 17/2016 and
18/2016 is that they have been in continuous and
uninterrupted possession of their respective portions falling
in the subject property by virtue of lease agreement in their
favour executed by the erstwhile owner Narain Singh, which
claim is untenable in law. It is not their claim that as on the
date of notification under Section, 6 and 7 of the LA Act
dated 03.09.1970, they were occupying the premises in
question as a tenant. Further, their claim that they came to
occupy the property as the possession of the subject property
was hot taken over by the Central Government, is hopelessly
fallacious in law. It is well settled that transfer of Nazul
property under Section 22 of the Delhi Development Act,
1957 with respect to Section 2(e)3(ii) of the PP Act is
applicable to the exclusion of the Property Act, 1982, for
which reference can be had to decision in PDA vs. Anant
Raj Agencies (Pvt.) Ltd.. (2016) 11 SCC 406.
31. The letter dated 02.09.1982 of the Ministry of Supply
and Rehabilitation, Government of India is a document,
which is more than 30 years old and coming from the
Government records and it shows that the subject property
had been inspected and certain persons had unauthorisedly
encroached upon the subject property at the time of handing
over its, possession to the DDA on 08.05.1984. At no stage
of the case, either in the previous Writ proceedings or
otherwise, any claim has been* preferred or lodged by the
appellants/occupiers that they have not been given any
notice of acquisition of land and/or compensation and the
submission made by the Id. Standing counsel for the DDA
that the proceedings under Section 9, 11, 11A &12 of the LA
Act were not required to be initiated in respect of a land
already acquired on taking over symbolic possession by the
DDA cannot be faulted in law. was also rightly urged by the
Ld. Standing counsel for the DDA that the claim of the
appellants with regard to their tenancy rights cannot be
agitated and no inquiry into the same can be conducted after
the lapse of a reasonable period of time and the beneficial
provisions of Section 24 of the Right to Fair Compensation
& Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 is not available to stale claims.
Reference in this regard can be had to decision in the Writ
Petition No. 3641/ 2016 and CM No. 6380/2019 titled
Raghubir Sinha vs. Union of India decided by the Hon‟ble
High Court of Delhi vide order dated 11.02.2019 and in
another decision in Writ Petition No. 2791/2015 titled
Manish Gupta vs. Government of NCT and Others dated
18.01.2019.
15. What is to be seen is that the DDA has consistently been pursuing its
rights and attempting to evict the encroachers, whose only claim is that
they are tenants. The landlord of the property in question has never
appeared. The right of a tenant cannot be better than that of a landlord.
16.The Court is informed that few weeks ago i.e. in 2020 itself, the heirs of
Narain Singh have filed a suit for right title and interest in the property
claiming adverse possession, and this is only on the basis of their
allegedly learning that some orders have been passed regarding eviction
of 'their tenants'. The plea made by the landlord echoes the story of Rip
Van Winkle. The first eviction proceedings were initiated in 2009
(MCD), then by DDA in 2010, resulting in an eviction order in 2015.
The second eviction order was passed on 22.08.2016; it was under
challenge for 5 years before the learned District Judge, and the appeal of
the tenants/petitioners was dismissed on 03.07.2020. It is difficult to
believe that the alleged landlord, who was receiving monies/rental all
along from the petitioners, had no knowledge of what was transpiring. It
is also difficult to believe that the petitioners never informed him of the
pendency of the proceedings in which they had all participated as
tenants. That being the position, surely, Narain Singh, who is claimed to
be the landlord, knew fully well about DDA pursuing its claims.
17.The property has been vested in the DDA through a transfer document.
The said document, inter alia, reads as under:
"...... I am directed to say that in 1967, the Cabinet
approved the proposal of the Ministry of Works &
Housing in regard to large- scale acquisition and
development and disposal of land in Delhi (vide case
no. 14/2/1967, dated the 17th January, 1967) that inter-
alia provide that unutilised lands with the Department
of Rehabilitation within the urbanisable limits of
market value on negotiated basis to be fixed by the
Department of Rehabilitation. It was considered that
since the Delhi Administration itself was transferring
all its lands to the Delhi Development Authority, the
lands in question should be consultation with the
Ministry of Works & housing.
2. Negotiations were held with the Ministry of Works &
Housing and the Delhi Development Authority to arrive
at a mutually agreed cost formula. The Delhi
Development Authority has agreed to take over those
lands on „as-is-where -is‟ basis on payment of Rs. 30
crores.
3. I am accordingly to convey the sanction of the
President to the transfer of unutilised lands (both
developed and undeveloped) measuring approximately
1020 acres to the Delhi Development Authority on
payment of Rs. 30 crores, subject to the condition laid
down in paras 4 to 7 below. The broad details of the
surveyed and un-surveyed lands are given in Annexure
„A‟ and Annexure „B‟ respectively. The particulars of
lands not being transferred to Delhi Development
Authority and retained by the Department of
Rehabilitation are given in Annexure „C‟. The details
shown in these annexures are based on the result of the
joint survey carried out by this Department and the
Delhi Development Authority from 1978 onwards in
respect of the surveyed colonies and on the basis of this
Department‟s record in respect of unsurveyed colonies.
There are likely to be some omissions/ variations in the
areas shown against different colonies. The exact area
transferable to the Delhi Development Authority under
this sanction will be as per physical handing over/
taking over of the lands. Rupees 30 crores has been
agreed as a package deal and this amount shall not be
changed if the variations are found in the actual area of
the land either on plus or minus side.
4. Where the Department of Rehabilitation is required
to allot/ transfer some land in pursuance of the existing
or future judgements of the Courts, Arbitrators,
Tribunals, etc., such cases/ judgments will be fully
honoured/ implemented by the Delhi Development
Authority.
5. If any case of commitment made by the Department
of Rehabilitation comes to the notice later on, such
cases will be examined on merits and decided in
consultation with the Delhi Development Authority.
6. The Delhi Development Authority shall pay to this
Department a sum of Rs. 30/- crores (Rupees Thirty
Crores) only in three equal instalments. The first
instalment of Rs. 10/- crores will be paid by the Delhi
Development Authority by October 1982 and the
subsequent instalments will be paid by 31st October
1983 and 31st October 1984. In default, the Delhi
Development Authority will be liable to pay interest for
the unpaid amount at the rate fixed by the Central
Government from time to time.
7. Full particulars of the land, the broad details of
which are given in Annexures „A‟ and „B‟, together with
sketch plans etc. will be furnished by the Deputy Chief
Settlement Commissioner (M) from the date of issue of
this sanction. The Delhi Development Authority shall
render all assistance to ensure speedy process of
handing over/ taking over the lands and for preparing
the sketch plan.
8. The transfer of the lands in question shall take effect
on the payment of first instalment of Rs. 10/- crores.
The Delhi Development Authority shall maintain,
develop and dispose of these lands under the provisions
of the Delhi Development Authority.
9. The payment to be made by the Delhi Development
Authority under this package deal will be made to the
Department by way of a Demand Draft drawn in favour
of "Deputy Controller of Accounts (Rehabilitation),
New Delhi" for being credited under the following
Head:-
"088 - Social Security and Welfare - Relief and
Rehabilitation of Displaced Persons- Displaced
Persons from former West Pakistan - Receipt on
account of Acquired Evacuee Properties adjustable by
the Deputy Controller of Accounts (Rehabilitation),
New Delhi."
10. This sanction issued with the concurrence of the
Finance Branch vide their U.O. No. 2510/Fin/82, dated
02.09.1982.
...."
18. The contention of limitation apropos the PP Act is refuted by DDA.
It is contended that the arguments is untenable because the
unauthorised occupation is a continuing cause of action and the
Government can step in at any stage to evict the unauthorised
occupants from lands meant for public purposes; that the unauthorised
occupants who knew all along that the Government is emphasising its
claim over the land first through MCD and then tough the DDA, but
the petitioners never claimed any independent rights in the land
though adverse possession. A case for adverse possession can be
made only when the claim of the owner is challenged through
possession of the property by another person, and the latter asserts
this right inspire of the claim of the owner, and the owner knowing of
the adverse claim and passion does nothing to reclaim the property
within time. But the petitioners have not claimed n right on the basis
of their possession alone and adverse to the claim of DDA. The
learned Standing Counsel for the DDA, relies upon the dicta of the
High Court of Madhya Pradesh in L.S. Nair vs Hindustan Steel Ltd,
Bhilai and others, AIR 1980 M.P. 106. It held, inter alia, as under:
" 10. It was also submitted that the recovery of damages for
a period beyond 3 years was time barred. The Limitation
Act has no application to proceedings before the Estate
Officer who is not a Court. Learned counsel for the
petitioner relied upon the case of Kalu Ram v. New Delhi
Municipal Committee, (1965) 67 Pun LR 1190 in support of
his submission. There is nothing in Section 7(2) which
authorises the Estate Officer to assess the damages on
account of the use and occupation of the premises and by
order require the person to pay the damages, to show that
there is any rule of limitation by which the Estate Officer is
governed. As the Limitation Act has no application to
proceedings before the Estate Officer and as the
jurisdiction of Civil Court is entirely barred in matters
governed by the Public Premises Act, it is difficult to accept
the argument that there is any period of limitation for
recovery of damages. The Punjab case on which reliance
was placed, construed the words "rent payable" as they
occurred in Section 7 (i) of the Public Premises Act, 1958,
and construed them to mean "rent legally recoverable by a
suit." The case has no application for construing Section
7(2) of the Public Premises Act, 1971, which deals with the
power to assess and order payment of damages and where
the language used is entirely different. Further, Section
15 of the 1971 Act now bars a suit and the remedy under
the Act is the only remedy which can be availed of. In such
a situation, the Limitation Act cannot be inferentially
applied to proceedings before the Estate Officer."
19.The petitioners contend that in terms of the notification of acquisition,
this particular land was never acquired by the Government of India nor
was it transferred to the DDA; that after the notification under Section 6
of the Land Acquisition Act, 1970, gazetted on 03.09.1970, no award
was passed vesting the said land in the GoI or thereafter purportedly
transferring the same to the DDA on 02.09.1982.
20.However, the petitioners have not shown that their landlord Narain
Singh, had any right in the property. The landlord himself has not come
forth ever. The petitioners knew full well that the DDA and GoI were
asserting their title in the property on the basis of the transfer document
and acquisition proceedings under ss.4 and 6 of the Land Acquisition
Act. If the petitioners or their landlord claimed any right, title, or interest
in the said property, they could have challenged the said notifications;
the alleged transfer to DDA for Rs.30 crores and/or the possession letter.
The Estate Officer was not required to look beyond the transfer
document which granted right to the GOI and subsequently to the DDA
under the acquisition notifications. It may be contested that the
acquisition proceedings were never complete but that contest could only
be made by the 'landlord' Narain Singh and not by his tenants - the
petitioners. The latter have also not set up a case of adverse possession
against DDA or GOI. They did not do so in the proceedings initiated by
the MCD or any time ever against the DDA. They claimed protection
under a landlord, who never contended in any proceedings despite
having been served notice in the W.P.(C) No.16/2009. It is odd that a
landlord will not assert his right, title or interest apropos land he possibly
claimed his own, albeit he and later his 'heirs' were allegedly receiving
rents from the tenants/petitioners. His not doing anything in this regard
could lead to only one conclusion, that he never actually had a claim or
did not wish to assert it against the DDA in view of the s.6 acquisition
notification. Perhaps the petitioners too have not taken any steps to
dispute the same. Therefore, there is a presumption in favour of the
validity of the said government documents. A tenant's rights cannot be
more that that of the landlord. The tenant cannot challenge the
government documents which the landlord himself has not challenged.
The landlord's, suit now filed after 38 years seeking adverse possession,
after the aforesaid transfer to DDA in 1882, has yielded no results in his
favour thus far. The petitioners have not claimed protection under any
other statute.
21.The petitioners have not been able established any right in the property
which they could claim to supersede the claim of their landlord. No error
is shown in the procedure adopted by the Estate Officer. The eviction
order is reasoned; the appellate/impugned order, has extensively dealt
with each of the contentions raised by the petitioners. These petitions are
without merit and are accordingly dismissed, along with pending
applications.
22.The order be uploaded on the website forthwith. Copy of the order be
also forwarded to the counsels through email.
NAJMI WAZIRI, J
SEPTEMBER 14, 2020
rd/rw/ab
