FAO 161/2004 Page 1 of 13 * IN THE HIGH COURT OF DELHI AT NEW DELHI + FAO 161/2004 Reserved on: 08.11.2010 Date of Decision: 15.11.2010 ABHA TYAGI & ANR. ..... Appellants Through Mr. Sandeep Sethi, Sr. Adv. with Mr. H.S. Kohli, Adv. versus UNION OF INDIA & ORS. .... Respondents Through Ms.Shobhana Takiar, Adv. for DDA CORAM: HON'BLE MR. JUSTICE MOOL CHAND GARG 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes : MOOL CHAND GARG,J 1. This appeal arises out of an order dated 12th May, 2004 passed by Additional District Judge whereby an application under Order 39 Rules 1 & 2 of CPC filed by the appellants has been dismissed. The facts in the backdrop may be summarized as under :- 2. The appellants claim to be the bhumidar/ owner of the property measuring 600 sq.yds. forming part of Khasra No.2029/1675 (old) and 1244 (new) situated in the revenue estate and Abadi area of village Kishangarh, Tehsil Mehrauli, New Delhi, which has been recorded as „Shamlat Patti Gano‟, „gair mumkin abadi‟ and „banjar qadim‟. That it was submitted on behalf of the appellants that during the course of preparation of trial with respect to a Suit No 1868/1994 which had been instituted by one Sh. Gynandra Sharma, to whom the land in question originally belonged and where an interim stay was granted in favour of the plaintiffs, fearing demolition of the suit property, it came to the knowledge of the appellants that the revenue records with FAO 161/2004 Page 2 of 13 respect to the land in question had been incorrectly maintained and that the appellants had neither been shown as owners /Bhumidars nor in possession of the same. Further, the land had been wrongly and illegally shown to be vested in the Gaon sabha in the Revenue Records. 3. It was further submitted by the appellants that appellant No.2 along with others had earlier instituted a writ petition CWP No 3811/2001 titled as “Village Kishangarh Welfare Association (Regd) V/s Union of India and Others” before this High Court, wherein this Court vide orders dated 4.06.2001 and 8.06.2001 had granted stay against demolition and dispossession of the petitioners therein. The said interim orders were subsequently confirmed on 27.09.2002. However, as the question of title was involved, this Court vide order dated 10.01.2003 granted liberty to the petitioners therein to file their separate suits and the writ petition was dismissed as withdrawn. Therefore the appellants filed a Suit No 109/2003 on 16th January, 2003 seeking a permanent injunction against the defendants prohibiting and restraining them from demolishing, sealing or interfering in any manner in the possession of the appellant in the suit property and to have the said incorrect and illegal entries in the Revenue Records corrected. 4. That the aforesaid suit, as initially instituted before this Hon‟ble Court came up for hearing on 17.01.2003, whereupon this Hon‟ble Court vide order of the said date was pleased to grant interim orders in favor of the appellants with respect to the suit property. That subsequently upon increase in the pecuniary jurisdiction of this Hon‟ble Court, the aforesaid suit stood transferred to the Ld, District Court and was numbered as Suit No 269/2003. Thereafter arguments were heard on the application under Order 39 Rules 1 & 2 as preferred by the appellants and finally the Learned District Judge dismissed the application and hence the appeal has come before us. 5. Before the learned District Judge, appellants submitted that the predecessors of the appellant have settled in Khasra No 1675 and constructed their residential houses as per their share in the said land, after selling their houses in Abadi Deh. Appellants further stated that the proprietor one Sh Mangto Ram gave the land to Sh Nathan Sharma FAO 161/2004 Page 3 of 13 on lease prior to 1952 and transferred all his rights in the Fasli year 1953-54, who became bhumidar of the land. And after the death of Sh Nathan, the appellants became the Bhumidar of the suit property having possessory title over the suit property through registered sale deed of 1991. The appellants also took a stand that the land neither vested in Gaon Sabha at the commencement of DLR Act nor was the property of Gaon sabha as it was never a waste land and therefore also did not vest in the Central Government at the time of urbanization of the village but remained part of Abadi Deh situated in the Abadi area (LAL Dora). 6. The appellants further argued that the Gaon Sabha did not acquire any right or interest in the suit property as no notification under Section 7 of the DLR Act has been issued after the commencement of the Act nor it could have been, as the land was built up in Abadi property and was in use and occupation of the predecessors in interest of the appellants. Also Gaon Sabha had neither taken the possession nor filed any suit for ejectment. The Appellants also stated that the respondent no 1 has no power, competence and authority to issue any notification under section 507 of Delhi Municipal Corporation Act as the land was never in possession of Gaon Sabha and wrong entries have been made in the records which are false and illegal. 7. Respondent No 2 on the other hand contested the suit and submitted that the appellant is an encroacher of the land in khasra No 2029/1675 and has no right, title or interest in the land in question. It has also been submitted by the respondent that the suit does not disclose any cause of action in favor of the appellants and also the suit is barred under section 53 B of the Delhi Development Act. Further neither the appellants nor the predecessor in interest of the appellants are the owner of the land even as per revenue record. According to respondent the land vested in Gaon Sabha and after the issuance of notification under section 507 of the DMC Act, dated 6.06.1966, the land vested in the Central Government which has been placed at the disposal of respondent no 2 for development purposes vide notification FAO 161/2004 Page 4 of 13 No 2190 dated 20.08.1974 and as such the land in question is a public property. 8. I have gone through the record and have also perused the impugned order. It would be appropriate to take note of certain observations made by the ADJ which goes to show that the learned ADJ has taken note of the story of both the side and has come to the conclusion that the appellants are not entitled to any injunction order under Order 39 Rules 1 and 2 CPC. The observation made by the Learned ADJ are reproduced hereunder:- In the present case, as per the Khasra Girdwari for the year 1985-86,1986-87,1987-88,1988-89, the land has been shown to be in the Bhumidari of Gaon Sabha in column No 4 and in column No 8, it has been stated that the land is Banjar Qadim Abadi and road and the name of the predecessor in interest of the appellants or the appellants are nowhere mentioned. 9. Reference has also been made to several judgments:- “Union of India Vs Sher Singh and Others (1977) latest Judicial Reports, 468 It has been held that from conjoint reading of Section 7 read with the explanation, it emerges that unless the waste land stands excluded from Section 7, the rights of the proprietors in the baseland, pasture land or community utility land etc, shall vests in the Gaon Sabha, and by operation of Section 5 with the definition of Khud Kasht and explanantion to waste land for the purposes of exclusion under the explanation from the purview of Section 7 of the Act, as a consequence thereof, except the land for the time being comprised in any holding or grove, rest all of lands whether cultivable or otherwise , vest in the Gaon Sabha from the date of commencement of the Act, under Section 154 of the Act. In the case of Hatti Vs. Surinder Singh AIR 1971 SC 2320 After going through the relevant portion of the Act, it was held Section 6,11,13 and 154 of the Act, read together, thus shows that after the act came into force, proprietors of Agricultural Land, as such ceased to. If any land was part of a holding of a proprietor, he became a Bhumidar of it. If it was part of a holding of some other person, such as a tenant or a sub-tenant etc., he became either a Bhumidar or an Asami, whereupon the rights of the proprietor in that land FAO 161/2004 Page 5 of 13 ceased. Lands, which were not holdings of either the proprietor or any other person, vested in the Gaon Sabha. In the case of proprietors, their rights in the land continued to exist only in respect of holdings which, under the definition, must have been either their sir or khud kasht at the commencement of the Act. If it was not sir or khud kasht of a proprietor, it would not be his holding and, consequently, such land would vest in the Gaon Sabha under Section 154, the result of which would be that the rights of the proprietor would be extinguished.” 10. Thus as stated above in the Khasra girdwari for the year 1985, 1986-87,1987-88,1988-89 relied upon by the appellants, the nature of the land has been stated to be Banjar Qadim, abadi and Road and in the bhumidari of the Gaon Sabha and as per the Khatoni for the year 1980-81 placed on record by the respondent no 1 , the entire land is Banjar Qadim and there is nothing on record , to show that the appellants or their predecessor in interest, were or ever became, the bhumidari in respect of the suit land at or after the commencement of the DlR Act. 11. It was also observed that the documents of ownership i.e the sale deed dated 20.02.1991 executed by one Sh K.C.Tyagi as attorney of Smt Naraini Devi, who happened to be an attorney of Sh Sardar Singh, placed on record by the appellants is of no significance, as the executants of these documents were not the recorded Bhumidaris of the land after the commencement of the DLR Act, so as to say that they had any right, title or interest in the suit land which had been transferred to the appellants and thus , the appellants cannot be an authorized occupant of the premises and the status of the appellant is that of a trespasser/ encroacher over the public land. 12. It is pertinent to mention that in regards to the above stated reference has also been made to a judgment in the case of Rajinder Kakkar & Ors. Vs. DDA 1994(1)AD(DELHI)432. Sh.K.C.Tyagi was one of the petitioner in that case to whom the appellant is trying to trace his title in this case. In the aforesaid case, it was held that the petitioners including Sh.K.C.Tyagi (Petitioner No.6) had no title in the suit property and all of them were unauthorized occupants. Relevant observations FAO 161/2004 Page 6 of 13 made by the Division Bench in the aforesaid judgment is reproduced hereunder: “(1) Six persons claiming to be owners of different plots of land in Village Kishan Garh in the revenue estate of Mehrauli, New Delhi have filed the present writ petition challenging the action of the respondents, which has been taken and/or being proposed; to be taken, for demolishing structures which have been erected by the petitioners on the said plots. The petitioners also challenge the validity of the entries in the revenue records viz., Khasra Girdawri in respect of the lands which they profess to own. (2) The first two petitioners claim to have purchased land measuring 570 Sq.Yards from one Smt. Kusum Lata. It is averred in the writ petition that this land was purchased on the basis of an agreement to .sell executed by her in the name of both the petitioners jointly. Copy of the agreement to sell has not been placed on the record but the claim of the said petitioners is that they have been in occupation of the property in question since 13th June, 1986. (3) Petitioner No.3 is stated to have purchased 10 Sq.Yds of land by virtue of an agreement to sell executed by one Shri Gyanendra Sharma on 20th November, 1989. Copy of the said agreement has been placed on record. (4) Petitioner No.4 is stated to have purchased 100 Sq.Yds of land from one Shri Rambir by virtue of an agreement to sell dated 27th May, 1991. (5) Petitioner No.5 is also stated to have purchased 100 Sq.Yds of land but no document evidencing this has been placed on record. (6) Petitioner No.6 claims ownership of 580 Sq.Yds of land by virtue of a General Power of Attorney executed in his favor on 8thFebruary, 1991 by one Smt.Naraini Devi, who, in turn, is alleged to have purchased 629 Sq.Yds of land in Village Kishan Garh in the revenue estate of Mehrauli from one Sardar Singh by virtue of an agreement to sell dated 25th June, 1985. (Sh.K.C.Tyagi was petitioner No.6) (7) It is an admitted fact that none of the petitioners has a registered sale deed in his/ her favor. It is also not in dispute that to the land in question provisions of the Delhi Land (Restriction of Transfer) Act, 1972 apply which require the obtaining of a No Objection Certificate prior to the execution of sale deed in respect of such land. No such permission was obtained by any of the petitioners obviously because no sale deed has been executed in favor of any one. (8) The case of the petitioners is that during the pendency of the writ petition their properties have been partly demolished and this could not have been done without complying with the provisions of Section 30 of the Delhi Development Act, which requires a show cause notice being given before action for demolition is taken. The grievance of the petitioners also is that the land of the petitioners falls in Khasra No. 1244 of Village Kishan Garh in the revenue estate of Mehrauli and in the Khasra Girdawri for the period 14- FAO 161/2004 Page 7 of 13 10- 1991 to 14-3-1992 and w.e.f. 25-9-1992 to 15-3-1993 the land has been shown to be unoccupied whereas infact this land is under the occupation of the petitioners. (9) Before dealing with the rival contentions it is necessary to refer to some more facts relating to the land in question. (10) The Delhi Municipal Corporation Act was enacted in 1957 and on 3rd June, 1966 by issuance of a Notification under Section 507(A) of the Delhi Municipal Corporation Act a number of localities mentioned in the Notification, which were formerly part of rural areas, ceased to be regarded as rural areas. In other words a number of villages mentioned in the said Notification were urbanised. One such village was Kishan Garh in the revenue estate of Mehrauli. Relevant at this stage are the provisions of Section 150 of the Delhi Land Reforms Act. Sub-section(3) of Section 150 provides that if the whole of the Gaon Sabha area ceases to be a rural area by virtue of a Notification issued under Section 507 of the Act then, the Gaon Sabha constituted for that area shall stand dissolved and on such dissolution all properties, their obligations, liabilities etc. shall vest in the Central Government. The effect, therefore, of the issuance of the Notification dated 3rd June, 1966 under Section 507 of the Delhi Municipal Corporation Act was that the land belonging to the Gaon Sabha in the Village Kishan Garh in the revenue estate of Mehrauli vested in the Central Government. On 20th August, 1974 the Central Government issued a Notification under Section 22(1) of the Delhi Development Act placing at the disposal of the Delhi Development Authority the Nazul lands in different urbanised villages for the purpose of development and maintenance of the said lands as green. By the said Notification the DDA was further directed not to make or cause or permit to be made any construction on the said land. This Notification pertained to 48 different Villages including the Village Kishan Garh in the revenue estate of Mehrauli. (11) By another Notification dated 22nd June, 1987 55 urbanised villages were denotified from the provisions of Section 12 including Village Kishan Garh in the revenue estate of Mehrauli. The effect of this was that the land in question ceased to be a development area but on 26th July, 1989 a Notification in respect of Village Kishan Garh was once again issued under Section 12 of the Delhi Development Act. (12) The position in law as a result of the aforesaid Notification, therefore, was that all the Gaon Sabha land vested in the Central Government with the issuance of the Notification of 3rd June, 1966 under Section 507 of the DMC Act read with Section 150 of the Delhi Land Reforms Act. This land was nazul land and vide Notification dated 20th August, 1974 was placed at the disposal of the DDA for maintaining the same as a green area. For some time this land was not to be regarded as a development area but since 26th July, 1989 this area has continuously become part of the development area. (13) It is in this background that one has to view and determine as to whether the petitioners have any legal right in the land in question. This aspect is important because it has been contended FAO 161/2004 Page 8 of 13 by the learned counsel for the respondents that the petitioners are encroachers of public land who have raised unauthorised buildings and are, therefore, not entitled to the discretionary reliefs under Article 226 of the Constitution. (14) Petitioners 1,2 and 5 have not placed on record the documents whereby they claim to have acquired the ownership of the land in question. Learned counsel for the " petitioners has, however, admitted that there is no sale deed executed in their favor. No permission or no objection certificate under the 1972 Act has been taken by them. What is important to note is that there is no document on record showing that the vendors had any right, title or interest which they could pass on to the said petitioners. As regards the other petitioners, in support of their title they have merely placed on record agreements to sell which have been executed. An agreement to sell does not transfer ownership in land. That apart, in the said agreements to sell it has been stated that the vendor has absolute right as an owner and is the owner in possession but there is no document showing that any of the vendors had ownership right. The land in question had vested in the Gaon Sabha on the promulgation of the Delhi Land Reforms Act, 1954 and thereafter became the property of the Central Government on the issuance of the Notification under Section 507 of the DMC Act on 3rd June, 1966. Under these circumstances the question of any person claiming ownership right in the land in question could not arise. The recital in the agreements to sell, therefore, to the 'effect that the vendors were absolute owners of the land in question was palpably false. (15) We also have had the benefit of seeing the revenue record which has been produced by the Patwari of Mehrauli. The respondents have also placed on record the Khatauni of the village in question which shows that as per the last entry in 1980 the land in I question belongs to the Gaon Sabha. In actual effect this land should have been shown as that of Central Government but be that as it may, it is evident that the land does not belong, as per the said revenue record, either to the petitioners or their predecessors in interest. In the Khasra Girdawri also, the possession of the petitioners or their predecessors in interest is not shown. (16) Apart from the bare recital in the agreements to sell there is no document on record to show that there was any legal title or legal right to possession of the land in question in any of the petitioners or their predecessors in interest. It is no doubt true that the petitioners have been occupying the land for some time but their occupation was of trespassers or encroachers of public land. They have no legal right, title or interest in the same. As we have already noted, the main grievance of the learned counsel for the petitioners is that the respondents have acted and are threatening to act without complying with the provisions of Section 30 of the Delhi Development Act. We will deal with this contention presently but we cannot help but observe that the contention of the petitioners in effect comes to this that they have violated the law and will continue to do so but this does not give the DDA a right to follow the petitioners' example. In other words the law is meant to be obeyed by the DDA alone and not by the petitioners. FAO 161/2004 Page 9 of 13 (17) Time has now come where the society and the law abiding citizens are being held to ransom by persons who have no respect for law. The wheels of justice grind slowly and the violators of law are seeking to take advantage of the laws delays. That is why they insist on the letter of the law being complied with by the respondents while, at the same time, showing their-complete contempt for the laws themselves. Should there not be a change in the judicial approach or thinking when dealing with such problems which have increased manifold in recent years viz., large scale encroachment on public land and unauthorised construction thereon, most of which could not have taken place without such encroachers getting blessings or tacit approval from the powers that be including the Municipal or the local employees. Should the Courts give protection to violators of the law? The answer in our opinion must be in the negative. Time has now come when the Courts have to be satisfied, before they interfere with the action taken or proposed to be taken by the governmental authorities qua removal of encroachment or sealing or demolishing unauthorised construction especially when such construction, like the present, is commercial in nature. (18) Before action for demolition or removal of encroachment is taken the Court must be satisfied, prima facie, on the basis of some document or other tangible evidence that the petitioners or the applicants have a legal title to the property or a right to remain in possession thereof. Where a person is an encroacher and never had any right to legal possession of public land, the Courts should not grant any injunction or relief which will have the result of permitting or protecting the continued illegal occupation of public land. There may be a case where at a point of time the possession or occupation may have been valid under a lease or a grant and which lease or grant may have subsequently been wrongfully terminated and the termination challenged, such a .case may, however, fall in a different category where the question of balance of convenience will have to be carefully examined specially when the action of termination of lease or grant is seriously challenged. But, in a case like the present, where at no point of time the petitioners had any valid right, title or interest to the property the Court ought not to grant any relief to such a petitioner even if there has been any procedural irregularity by