Full Text
HIGH COURT OF DELHI
Date of Decision: 1st December, 2020
DELHI DEVELOPMENT AUTHORITY ..... Appellant
Through: Mr. Sanjeev Sagar, Standing Counsel with Ms. Nazia Parveen, Advocate
(M-9278693021).
Through: Mr. Manohar Lal & Mr. Chaitanya Rohilla, Advocates for R-1. (M-
9810510145)
JUDGMENT
5 WITH + RSA 57/2020 & CM APPLs. 12573-74/2020 with Ms. Nazia Parveen, Advocate.
VERSUS
JAI BHAGWAN & ANR..... Respondent Through: Mr. S.S. Gulia, Advocate (M- 9958446751). 6 AND + RSA 58/2020 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 2020:DHC:3427 passed by the ld. District Judge/Appellate Court, in appeals filed by the Appellants/Defendants against the impugned judgments/decrees dated 26th 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 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.”
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 15th 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.
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. 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:
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 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.
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