Vivekanand Pratishthan Parishad vs Rehmat Ali and others

Respondents 1 to 8 herein filed a suit for permanent injunction against the present petitioners and respondent No. 9. Along with the said suit the said plaintiffs I filed an application seeking interim injunction against the present petitioners as well as DDA under Order 39 Rules 1 and 2. The case of the plaintiffs before the trial court was that they were tenants in respect of their respective portion for the last more than 9 years under the present petitioner i.e. defendant No. 2 before the trial court. It was further alleged that at the time of letting out the premises, the defendant No. 2 assured them that he was owner and landlord of the property. However, during the course of the trial, the defendant No. 2 took the plea that he was neither the owner of the suit premises nor let out the same to the plaintiffs. DDA was imp leaded as defendant No. 1. In its written statement DDA took the plea that Khasra No. 37/3, 4, 7, 8 and 14 of Village Khureji Khas had been acquired vide award No. 22/ 70-71 and the possession of the same had already been taken over by the DDA. While contesting the application it was further pleaded by the DDA that plaintiffs have unauthorisedly put up Khokhas on the acquired land which were liable to be removed. The trial court after going through the record found no prima facie case in favor of the plaintiffs and hence dismissed the application. According to the court below the land had been acquired by the government and it being government property, Therefore, no person has a right to construct any khokhas or raise structures thereon. Since the plaintiffs were unauthorised occupants of the land, hence no case is made out to grant interim injunction.

Against the order of the learned Sub Judge, the plaintiffs filed an appeal which was listed before Shri S. N. Dhingra, Addl. District Judge, Delhi. The learned Addl. District Judge not only allowed the appeal but made certain observations against which the present petition has been preferred.

Notice of this revision petition was duly served on respondents 1, 4 to 8. So far as respondents Nos. 2 and 3 are concerned, the petitioner gave them up from the array of respondents. Since the served respondents did not appear, Therefore, they were proceeded exparte. The respondent No. 9 DDA filed the reply and supported the case of the petitioner. I have given my thoughtful consideration to the contentions raised by the petitioner which are supported by the respondent-DDA. admittedly, the Khokhas of respondents 1, 4 to 8 are built on Khasra No. 33/7/4/8/14 of Village Khurejee Khas, the land of these khasras measuring five acres belong to DDA as it was acquired by the Delhi Administration through award No. 22/70-71 leaving no right, title or interest in any party. Prior to these khasras being acquired the petitioner has been in occupation of this land. But after it was acquired the petitioner surrendered the possession to DDA. Since the petitioner is a society dealing with charitable purpose, it Therefore applied to the DDA for allotment of land for constructing a hospital as well as essential staff quarters. The Lt. Governor after considering the application of the petitioner allotted two acres of developed land to the petitioner against a consideration of Rs. 1.97 lakhs. The rest of the three acres of land remained with the DDA. The respondents 1 to 8 had squat tiered over this land which belongs to DDA. The DDA wanted to remove these encroachers for the purpose of widening of the main Patparganj road in village Khureji Khas. Further the formal possession the land was handed over to the petitioner on 27th February, 1989 but the regular possession could not be handed over as portion of the land measuring about 300 square metres was under unauthorised encroachments. The remaining land of three acres meant for community facilities was also under encroachment.

How the respondents 1 to 8 came in possession of these lands was not the question for consideration before the first appellate court because the day the suit was filed respondents 1 to 8 were encroachers on the public land which was meant for widening of the road and for community facilities. Their possession was prima facie unauthorised. The learned Addl. District Judge fell in error in observing that,

"the DDA was going to reward Vivekanand Parish than for its unauthorised act of illegal occupation of government land by handing over the land to the Parish than. The same DDA, who was going to reward Vivekanand Parish than with five acres of land; wanted to bulldoze the shops/khokhas which were rented out by the Vivekanand Parish than on the unauthorised occupied land of DDA. Thus by bulldozing these shops DDA now wants to further reward Vivekanand Parish than for second illegal act of giving the unauthorised land on rent to some persons and earning from that illegal rent...... From this one thing is very obvious that big encroachers and sharks like Vivekanand Parish than had big connections in DDA with the result that they get acres of land allotted in their names which was in their unauthorised occupation and the hammer of demolition/ dispossession falls on those poor persons who had no connections in DDA,"

In fact the observations of the Addl. District Judge are contrary to the record. The petitioners surrendered the land to the DDA after the same was acquired by the Delhi Administration. Thereafter the petitioner applied for the land and paid the consideration for the same pursuance to which out of five acres two acres of land was allotted in favor of the petitioner. So the Addl, District Judge was not right when he observed that the petitioners are big encroachers or sharks or had any connection with the DDA. These observations are made out of emotions than based on legal rights of the parties. There is no question of poor or rich. The Addl. District Judge was to decide the case on merits but from the observations made by him it appears that he exceeded his jurisdiction by ignoring the legal position as well as the facts on record. Admittedly the respondents 1 to 8 are unauthorisedly occupying the land belonging to DDA. The question for consideration before the Court was whether they had any right and if not then can the DDA be injected from demolishing the unauthorised construction and disposing them which the Addl. District judge never dealt. All his observations appear to be fragmentation of his own imagination and not borne out from the record. The learned sub judge while dismissing the application of respondents 1 to 8 took into consideration the prima facie case, the balance of convenience and the irreparable loss and after discussing the merits of the case came to the conclusion that no prima facie right of occupation has been made out by these plaintiffs and Therefore rightly rejected the application for interim injunction and I am in full agreement with the decision of the learned Sub Judge. I accordingly accept the revision petition, set aside the impugned order passed by the Addl. District Judge and upheld the order passed by the learned Sub Judge, Shri A. S. Yadav.

Revision allowed.