Ramesh Jain & Anr. v. NDMC & Anr.

1. This petition under Article 227 of the Constitution of India impugns the concurrent order and judgment passed by the courts below; of the trial court dated 4.6.2013 and the first appellate court dated 28.4.2014 respectively; by which the injunction application of the petitioners/plaintiffs has been dismissed. The case of the petitioners/plaintiffs was that they had purchased the suit property being no. HR-12C, Anand Parbat Industrial Area, New Delhi admeasuring 170 sq. yds from one Smt. Meera Kanwaria 2014:DHC:3851 through usual documentation of Agreement to sell, General Power of Attorney etc dated 3.11.1998. It was further the case of the petitioners/plaintiffs that the possession of the suit property was given to the petitioners by Smt. Meera under the said documentation. It is further argued that government had taken “paper possession” only and consequently, the petitioners/plaintiffs being in possession of the suit property, the action of the respondents i.e North Delhi Municipal Corporation and Delhi Development Authority in demolishing the boundary wall around the subject plot is illegal.

2. Before this Court, it is argued that possession of the petitioners/plaintiffs be protected, and the respondents cannot demolish a boundary wall which is in fact not permissible by the Municipal bye-laws.

3. In my opinion, there is no merit in the present petition inasmuch as, relief of injunction is a discretionary relief, and to get such a relief petitioners/plaintiffs must show basis with respect to title and possession of the suit land. So far as the possession is concerned, and which aspect in the present case is also related to title, it is the case of the petitioners/plaintiffs itself that “paper possession” was taken. Once therefore, possession was taken of the suit land by the governmental authorities under the Land Acquisition Act, 1894 no title remained either of the predecessor of the petitioners/plaintiffs or of the plaintiffs. A reference to the pleadings in the suit also shows that the wall of the petitioner stood demolished and, therefore, actually, the petitioners/plaintiffs were not in possession of the suit property on the date of the filing of the suit, and even if such a possession was there it would have been of an encroachment of a person on government land.

4. The first appellate court has in this regard made correct observations in para 8 of the impugned judgment and which para 8 reads as under:-

5. Counsel of the petitioners wanted to cite judgments which hold that unless land acquisition proceedings are complete, “paper possession” taken cannot confer any right upon the governmental authorities, however, there is no dispute to the legal proposition that unless land is acquired the governmental authorities cannot have title to the land, however, in the present case, it is only a mere assertion of the petitioners/plaintiffs that the possession taken was “paper possession”, and consequently, I refuse to agree with the arguments urged on behalf of the petitioners/plaintiffs that only “paper possession” was taken and not actual possession. Also, the aspect of actual physical possession of the governmental authorities/respondents is clear, and as stated above, from the fact that the endeavour of the petitioners/plaintiffs to encroach upon the suit land by constructing boundary walls was defeated and the boundary walls with respect to the suit property were demolished by the respondents/governmental authorities.

6. Powers under Article 227 of the Constitution of India are discretionary and are meant to further ends of justice. Powers under Article 227 of the Constitution of India cannot be exercised in favour of a person who is endeavouring to encroach upon government land or is an encroacher of government land. Dismissed.

AUGUST 12, 2014 VALMIKI J. MEHTA, J. ib