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The Public Premises (Eviction Of Unauthorised Occupants) Act, 1971
Section 9 in The Public Premises (Eviction Of Unauthorised Occupants) Act, 1971
Section 10 in The Public Premises (Eviction Of Unauthorised Occupants) Act, 1971
The Code Of Civil Procedure (Amendment) Act, 1956
Article 226 in The Constitution Of India 1949

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Delhi High Court
Smt Ishmali Devi & Ors vs Delhi Development Authority on 24 August, 2009

*IN THE HIGH COURT OF DELHI AT NEW DELHI

+I.As.No.4832/2000, 4817/2006, 7382/2007, 11954 & 11957/2008, 3352/2009, 4174/2009 & 4544/2009 in CS(OS) No. 1075/2000.

% Date of decision: 24th August, 2009 SMT ISHMALI DEVI & ORS ....Plaintiffs Through: Mr. P.N. Lekhi, Sr. Advocate with Mr. Kamal Mehta & Mr. Brijesh Kr. Singh, Advocate

Versus

DELHI DEVELOPMENT AUTHORITY ....Defendants & ORS

Through: Mr. Ravi Shankar Prasad, Sr. Advocate, with Mr Ajay Verma, Ms. Sobnha Takkiar, Mr. Amit

Mehra Advocates for DDA.

Mr. D.P. Pandey & Mr. Neemesh Dubey,

Advocates for defendant No.7

Mr. Rajeev Sharma, Advocate for defendant

No.9.

Mr. Parag P. Tripathi, ASG with Ms Monica

Garg, Advocate for Safdarjung Hospital.

Mr. Mukul Gupta with Mr. Deepak Singh,

Advocates for defendants No.4&5/AIIMS.

Mr. Manoj Rath proxy counsel for Mr. V.K.

Tandon, Advocate for Delhi Police.

CORAM :-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. Whether reporters of Local papers may

be allowed to see the judgment? No

2. To be referred to the reporter or not? No

3. Whether the judgment should be reported No in the Digest?

RAJIV SAHAI ENDLAW, J.

1. This order is on the applications, of the plaintiffs for interim relief (IA No.4832/2000), of the defendant DDA for vacation of the ex parte order (IA No.7382/2007), of the plaintiffs for ordering demarcation of the suit property (IAs No.11954/2008 & 4174/2009) and of the defendant DDA for filing additional documents (IA No.3352/2009).

CS(OS)1075/2000 Page 1 of 30

2. The plaintiffs instituted the suit for declaration, injunction and damages with respect to the land admeasuring 300 bighas (approximately 65 acres) adjacent to Safdarjung Hospital and facing the erstwhile Kamal Cinema at Safdarjung Enclave, New Delhi. It is the case of the plaintiffs that their fore-fathers were granted the Malgujari rights and the nambardari rights of the land in question since times immemorial and had thus been enjoying the said land as owner thereof; that in the Jamabandies/misl hakiyat available with the plaintiffs, the predecessors of the plaintiffs and the plaintiffs have been shown as owners in possession of the land; that the said land had never been acquired, no acquisition proceedings with respect thereto had been completed and the fore-fathers of the plaintiffs or the plaintiffs had never been given any compensation with respect to the said land; that the possession of the plaintiffs of the said land had been uninterrupted, continuous and adverse to the world at large including the defendant No.1 DDA and the defendant No.2 Union of India and further that the possession of the plaintiffs has been hostile to any claim of the DDA/Union of India; that the said land was situated in village Arakhpur Bagh Mochi and which had been urbanized vide notification of 19th February, 1999. The plaintiffs further pleaded that the DDA had been threatening to dispossess the plaintiffs from the said land on the plea that the same belonged to State i.e., Sarkar Daulatmadar, even though the land had never been acquired and possession thereof never taken. The plaintiffs further pleaded that the DDA had, in the past, also attempted to dispossess the plaintiffs from the said land and for which purposes various legal proceedings as listed out in para 7 of the plaint had to be instituted and wherein, statements were made CS(OS)1075/2000 Page 2 of 30 that the plaintiffs will not be dispossessed without due process of law.

3. The plaintiffs further pleaded that proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act, 1972 had also been initiated even though the land was not public premises. The plaintiffs claimed that the entries of "Sarkar Daulatmadar" in the ownership column of the revenue records with respect to the said land were without any basis inasmuch as the land was never acquired. The plaintiffs alleging that the DDA and Union of India were clouding the title of the plaintiffs to the suit land, claim the relief of declaration of their ownership, permanent injunction restraining the DDA and Union of India from interfering with the peaceful enjoyment and possession of the plaintiffs of the said land, declaration that the proceedings before the Estate Officer were null and void and also claim damages from the defendants. The plaintiffs also claim mandatory injunction for directing the DDA to initiate appropriate action for removal of illegal and unauthorized encroachment including jhuggi jhopri clusters from the said land and direction to the DDA to construct boundary wall around the Jhuggi jhopri on the said land so as to prevent any further encroachment thereof.

4. The defendant No.2 Union of India in its written statement contends that the said land had been acquired vide notification No.775 dated 21st December, 1911 and award No. 28 dated 27th November, 1912 had been made with respect thereto. It is thus contended that the suit filed in May, 2000 is barred by time. Plea is also taken that the suit is barred by Sections 15 and 16 of the Public CS(OS)1075/2000 Page 3 of 30 Premises Act. It is denied that the plaintiffs have any right to or are in possession of the said land and it is pleaded that the plaintiffs were in fact, attempting to encroach upon the land. It is further pleaded that the plaintiff No.1 Ishmali Devi along with predecessor- in-interest of plaintiffs 3 and 4 had earlier filed CW.No.3819/1995 wherein vide order dated 30th October, 1995 the parties were directed to maintain status quo and thereafter orders were made for fencing of the said land. It is averred that under the notification and award aforesaid and further under award 29 dated 14th February, 1913, the entire area of village Arakhpur Bagh Mochi stood acquired and vested in the Government and possession taken; no revenue was assessed with respect thereto thereafter and no Jamabandi had been prepared after 1911-1912 and that, as per the revenue records, the area in question was being shown as belonging to "Sarkar Daulatmadar". It is claimed that a portion of the land had been encroached by the Jhuggi Jhopri dwellers. It is further pleaded that pursuant to agreement dated 31st March, 1937 between the Secretary of State for India in Council on the one hand and the erstwhile Delhi Improvement Trust on the other hand, the land of entire village of Arakhpur Bagh Mochi was placed at the disposal of Delhi Improvement Trust and which included the land subject matter of the suit. It was further pleaded that upon constitution of the DDA, the said land vested in the DDA and the claims of the plaintiffs with respect thereto were described as bogus. The defendant No.2 Union of India along with its written statement filed a typed copy of the award No. 28(supra).

5. The defendant No.1 DDA also filed a written statement claiming the land to have vested in it under the agreement of 1937 CS(OS)1075/2000 Page 4 of 30 (Supra) and as Nazul land. It is further claimed that in 1964 and 1979 land admeasuring 7.30 acres out of the said land was handed over to L&DO for extension of Safdarjung Hospital and another 3 acres was transferred to MCD for cremation ground. It is pleaded that in the revenue records, the cultivators were never recorded as lawful occupants. The defendant No.1 DDA denied the claims of the plaintiffs with respect to the said lands.

6. The plaintiffs, along with the plaint, filed an application for interim relief. When the suit came up before this court first, this court required the plaintiffs to file an affidavit. An affidavit dated 25th May, 2000 of plaintiff No.1 Smt Ishmali Devi was filed stating the area and the Khasra No., of which each of the plaintiffs claimed entitlement. On 9th August, 2000 the counsels for the DDA and Union of India stated that the proceedings under the Public Premises Act were in progress and the plaintiffs will not be dispossessed without the due process of law. The counsel for the plaintiffs contended that the proceedings under the Public Premises Act were without jurisdiction. In the circumstances it was directed that final order in the said Public Premises Act proceeding be not passed till the next date of hearing, though the proceedings may continue. On the next date i.e., 28th August, 2000, it is only ordered that the plaintiffs be not dispossessed from the said land till the final disposal of the application for interim relief and the earlier order dated 9 th August, 2000 stood modified to that extent.

7. On 5th August, 2002 a Local Commissioner was appointed by this court to identify the layout of the boundary wall being constructed at site and to prepare a site plan covering the entire CS(OS)1075/2000 Page 5 of 30 land and indicating the extent of actual occupancy and status of different portions of the land and to coordinate the preparation of a joint survey report by a team of officials of the L&DO and DDA and South Delhi District Revenue Department. It is noted in the subsequent order dated 8th August, 2002 that the Court commissioner had informed the court that the land in question and location was about 65 acres and out of which almost 48 acres was lying vacant and uncultivated, except for a very small portion of one acre patch. This court in order to safeguard the land from encroachment directed that the DDA should continue with its construction of the walls and encircle the vacant land as already ordered by the Division Bench in the writ petition.

8. To compete the chronology of interim orders, on 7th August, 2008 it was complained by the plaintiffs that inspite of the interim orders aforesaid, the boundary of Safdarjung Hospital on one side of the said land had been broken down and a new boundary wall was constructed by including a portion of the suit land within the area of Safdarjung Hospital. This court directed maintenance of status quo qua construction and possession and it was further clarified that no construction activity be carried out even on the land which had been shown included within the boundaries of Safdarjung Hospital. The plaintiffs were directed to file another affidavit. An affidavit dated 19th August, 2008 of plaintiff Mr Rajpal had been filed in which it had been stated that the plaintiffs were then in possession of land admeasuring 243.14 bighas and the proceedings under the Public Premises Act had been initiated with respect 231.02 bighas. It was further clarified that besides the said 243.14 bighas there was no other open land at site.

CS(OS)1075/2000 Page 6 of 30

9. The defendants on 13th March, 2009 also filed in this court the eviction orders issued under the Public Premises Act.

10. On 19th August, 2008 it was contended by the counsel for the DDA that out of the suit land, land admeasuring 0.647 acres and which had been included within the boundary of Safdarjung Hospital was required for the purposes of construction of a Sports Injury Centre for the Commonwealth Games 2010 and as such soil test with respect thereto was permitted to be carried out. On 16th November, 2008 senior counsel for the plaintiffs, without prejudice to the rights and contentions of the plaintiffs and without any special equities being created in favour of the defendants agreed, that the construction of the Sports Injury Centre on the said 0.647 acres of land be carried out subject to the condition that if ultimately the defendants lose in the suit, the defendants would compensate the plaintiffs with the costs of the said land as per market valuation of the land on the principle that the land had been acquired as on that date and subject to the defendants being further bound by any further orders of the court.

11. The senior counsel for the plaintiffs contended:- i. that the predecessor of the plaintiffs were the nambardars of land in Patti Pilanji in the year 1869; under Section 28 of the Punjab Land Revenue Act, 1887 Nambardari rights were granted only to the owners; the land continued to be governed by the said Act till 1908 whereafter it is governed by the Punjab and UP Act;

CS(OS)1075/2000 Page 7 of 30 ii. that the Nazul Agreement of 1937 filed by the DDA and relied upon by the DDA is not a document of title - unless it is established that the land has been acquired by the Union of India, it could not be given to DDA as Nazul land in 1937. It is contended that no document had been filed to show that the UOI is the owner of the land. It is however admitted that in the revenue records since 1925 the land has been shown as belonging to Sarkar Daulatmadar;

iii. that the possession of the plaintiffs had been admitted by the DDA and Union of India in earlier legal proceedings and which showed the plaintiffs to be in settled possession of the lands;

iv. attention was invited to the jamabandis from 1869 to 1908 to show the title of the predecessor of the plaintiffs to the said land;

v. there was no notification for acquisition of the revenue estate of Pilanji - the same was of Arakhpur Bagh Mochi; vi. Pilanji is not mentioned in the schedule of the 1937 agreement. Reference therein also is to Arakhpur Bagh Mochi;

vii. Attention was invited to the reply of UOI to IA.No.6802/2006 giving list of revenue estates and distinction was made within Arakhpur Bagh Mochi and Alipur Pilanji @ Hasanpur. On query it was informed that Alipur and Pilanji were separate villages and were together called Hasanpur. It was CS(OS)1075/2000 Page 8 of 30 contended that the Revenue Estate of Pilanji did not form a part of Arakhpur Bagh Mochi;

viii. With respect to the reliance by Union of India on Notification under Section 6 of the Land Acquisition Act, it was contended that the same is only in aid of acquisition and is not proof of acquisition; acquisition is completed only after the procedure prescribed in Sections 9 and 10 of Land Acquisition Act is gone through and resulting in award under Section 11 and possession being taken under Section 16. It was contended that till all the steps are completed, the owner is not divested of his ownership. It was contended that even though the original award had not been filed by the Union of India but the typed copy of the award filed by the Union of India with its written statement was only with respect to an area of 787.6 acres which matches with the area of Arakhpur Bagh Mochi and not of Pilanji. It was thus contended that the award even, if any, is not of the land in suit which is in Pilanji and not in Arakhpur Bagh Mochi. Reliance was placed on Kochkunju Nair Vs. Kosh Alexander (1999) 3 SCC 482 and Manmohan Service Station Vs. Mohd. Haroon Japanwala AIR 1994 Delhi 337 to the effect that ownership comprises of right to possession, right to enjoy and right to dispose of and it was asserted that the plaintiffs ought not to be deprived of the said rights. It was contended that on the land in Arakhpur Bagh Mochi which was acquired, the colony of Sarojini Nagar has come into existence, the land subject matter of the suit is in Pilanji;

CS(OS)1075/2000 Page 9 of 30 ix. that the plaintiffs without prejudice to their rights, claim or title to the land had in the plaint also claimed title by way of adverse possession; Reliance is also placed on Sopan Sukhdeo Sable Vs. Asst. Charity Commissioner (2004) 3 SCC 137 on as to what is settled possession;

x. it is contended that the possession of the plaintiffs/their predecessors of the land is admitted from the revenue records and the plea of acquisition of the land from plaintiffs/their predecessors; the defendants by initiation of proceedings under the Public Premises Act w.e.f. 1980 also admit possession of plaintiffs. It is contended that the possession of the plaintiffs in between also ought to be presumed. Wigmore on Evidence is cited to contend that "subsequent and earlier prove in between also" and that person is possession is deemed to be owner;

xi. it is contended that the plaintiffs wrongly claimed the suit land to be in Arakhpur Bagh Mochi though the same is in Pilanji. It was contended that the person in possession is presumed to be the owner. Salmond's Jurisprudence 12th Edition "Idea of Possession" and State of Missouri Vs Ray P Holland 64 Lloyds Edition 641 & Stroud's Judicial Dictionary, 17th Edition were cited to contend that possession is beginning of ownership and it was argued that even if it was held that the land was acquired, from the factum of the plaintiffs having continued in possession thereof, the plaintiffs had acquired rights with respect to the said land;

CS(OS)1075/2000 Page 10 of 30 xii. Punjab Land Revenue Rules were cited with respect to the appointment of Nambardar and Headman and the judgments reported in Harnam Singh Vs. Jagat Singh 1953 LLT 1; 1933 LLT 43 and 1935 Revenue Rulings 31 were cited in this regard. It was contended that in 1911 there were two Mauzas - Pilanji and Arakhpur Bagh Mochi. It was further sought to be demonstrated that in 1925, 30 revenue estates were clubbed into in to 5 estates only and it was only then that Pilanji became part of Arakhpur Bagh Mochi. It was contended that it was for this reason that at the time of Nazul Agreement of 1937, Pilanji formed part of Arakhpur Bagh Mochi. It is contended that at the time of alleged acquisition notification and award in the years 1911-1912, Arakhpur Bagh Mochi did not include Pilanji and thus acquisition of Arakhpur Bagh Mochi, even if any, did not mean acquisition of Pilanji;

xiii. it was contended that the Union of India and DDA had not even shown Section 4 Notification with respect to the land and on inquiry it was admitted that though under Section 114 of the Evidence Act, it shall be presumed that Section 6 Notification was followed by Section 4 Notification but it was contended that the same would be a rebuttable presumption. International Airport Authority of India Vs. MCD ILR 1991 (2) Delhi 265 para 28 was cited to canvas that entry in Khasra Girdawri of the ownership of Central Government is not reliable. It was contended that even though in 1937 Pilanji was included in the revenue estate of Arakhpur Bagh CS(OS)1075/2000 Page 11 of 30 Mochi but at the time of alleged acquisition it formed a separate revenue estate;

I may, however, add that Section 6 Notification relied upon by the Union of India and DDA includes both Arakhpur Bagh Mochi and Pilanji and thus this controversy on which detailed arguments were made is a bogey;

xiv. it was contended that the defendants had not produced any notice of Land Acquisition Collector to any person under Sections 9 and 10 and nothing was shown that the acquisition, in fact, had taken place or that the possession taken. Reference in this regard was made to Special Land Acquisition Officer Vs. M/s Godrej 7 Boyce_(1988) 1 SCC 50;

xv. Several judgments as well as Snell's Equity (2000 Edition) was cited to contend that the plea of adverse possession and title can be taken together.

xvi. However, it is not deemed expedient to refer to the said judgments, since the Supreme Court has in L.N. Aswathama Vs. P. Prakash MANU/SC/1222/2009 reiterated that the same is impermissible;

xvii. It was contended that the award, typed copy whereof has been filed, is of Arakhpur Bagh Mochi and not of Pilanji; CS(OS)1075/2000 Page 12 of 30 xviii. with respect to the register of payment filed by DDA alongwith IA.No.10278/2008, during the hearing it was contended that the same was also of Alipur and not of Pilanji; even otherwise it was contended that the register was not complete. Several other holes were poked in the case of the Union of India and DDA of acquisition of the land. It was contended that the certificate of having taken over possession of the land on acquisition had not been filed. Various other objections were taken to the documents filed by the DDA in IA.No.12078/2008 i.e., of the source thereof being vague, translation thereof as required by the rules having not been filed; of there being no certification of the documents; of the same being incomplete; of various insertions therein; of the same being forged and of the same being at variance with the pleadings. It was contended that several of the villages mentioned in Section 6 Notification relied upon were till date un-acquired and which shows that there was no acquisition pursuant to this Notification; xix. that DDA was required to maintain a property register under Section 57 of the DDA Act and no such register having entries of the land was shown. It was contended that adverse inference ought to be drawn against DDA; Under Section 22 DDA could transfer only the land which had been vested by the Union of India and without such vesting DDA could not have transferred any land to Safdarjung Hospital; xx. on the proposition that mutation entries do not create title, reliance was placed on Suraj Bhan Vs. Financial CS(OS)1075/2000 Page 13 of 30 Commissioner (2007) 6 SCC 186; Bitola Kuer Vs. Ram Charan AIR 1978 All 555 and Nanda Kumar Das Vs. Emdad Ali AIR 1927 Calcutta 49;

xxi. Only if both contending parties appear to have participated in proceedings resulting in mutation, do the mutation entries have presumptive value; reliance is placed on H.P.S. Chawla Vs. MCD (2005) 125 DLT 535 and Atma Singh Vs. State of Haryana (2008) 2 SCC 568, it was contended that hear there was nothing to show that predecessor of the plaintiffs had participated in mutation proceedings showing the "Sarkar Daulatmadar" as owner and plaintiffs as occupancy tenants;

xxii. Attention was invited to reply by L&DO to IA No.6802/2006 where it is only mentioned that the land was notified for acquisition and it is not said that possession was taken over; xxiii. Reliance was placed on Dalpat Kumar Vs. Prahlad Singh 1992 (1) SCC 719 to contend that the suit being for injunction, if interim relief was not granted and the land was lost, irreparable injury is inherent to the plaintiffs; xxiv. On balance of convenience, reliance was placed on Gurumukh Singh Vs. MIS Inderprasth Finance Co. 1976 RLR (1); K.M.P. Aboobucker Vs. K. Kunhamoo AIR 1958 Mad 287; State of Gujrat, Secretary, Home Department Vs. The Ahmedabad Urban Development Authority AIR 1997 Gujarat 22; M/s. G.M. Modi Hospital & Research Centre Medical Science Vs. Sh. Shankar Singh CS(OS)1075/2000 Page 14 of 30 Bhandari ILR 1995 (2) Delhi 792 and Chandu Lal Vs. MCD AIR 1978 Delhi 174.

11. The senior counsel for the DDA contended: i. that the entry in the revenue records of Arakhpur Bagh Mochi with respect to the said land has not been challenged; ii. existence of Section 6 Notification has not been challenged and the only argument was of possession in pursuance of the acquisition having not been taken over;

iii. In the plaint itself earlier legal proceedings initiated by the plaintiffs/their predecessors are referred to. It was contended that in the pleadings in the earlier legal proceedings no right of ownership was claimed and right only as a licencee was claimed. The argument is that the plaintiffs in the present suit have attempted expand their claims;

iv. that the land aforesaid is required urgently in public interest for the 2010 Commonwealth Games as well as for Delhi Metro Rail Corporation. Documents in this regard are filed with IA No.7382/2007;

v. Discrepancies were pointed out in the description of the land. In para 1 of the plaint, the land is described as in village Mujahidpur and comprising of Killas 1 and 8 only and it is only in prayer paragraphs that the land is described as measuring 300 bighas. In the earlier proceedings also the land was described as in Mujahidpur and it is, during the course of CS(OS)1075/2000 Page 15 of 30 arguments that the case of the land being in Pilanji has been made out;

vi. Attention was invited to the pleadings in the earlier suit wherein the predecessors of the plaintiffs had claimed to be tenant of the land and had not made any challenge to the entries in the revenue record of Arakhpur Bagh Mochi showing "Sarkar Daulatmadar" as the owner of the land; vii. It was contended that the plaintiffs/their predecessors having instituted the earlier suits, with full knowledge of the Government being the owner, the plaintiffs are now after 30 years not entitled to challenge the title of the Union of India; viii. with respect to one of the earlier legal proceedings mentioned in the plaint, it was shown that the possession had been taken over and the injunction vacated and the suit dismissed as withdrawn. It was contended that the present suit was not maintainable for this reason also;

ix. It is urged that the plaintiffs cannot be permitted to keep on improving their case;

x. it was contended that jurisdiction of this court to correct the entries in the revenue records is barred and the plaintiffs / their predecessors who have been litigating since 1962 have till date not taken any step for correction of the said revenue entries;

CS(OS)1075/2000 Page 16 of 30 xi. it was contended that thus the plaintiffs have not been able to demonstrate even prima facie any title to the premises.; xii. it was contended that that the plaintiffs had in the plaint referred to earlier legal proceedings but had not filed any copy thereof; adverse inference ought to be drawn against the plaintiff; if the plaintiffs did not claim ownership in the earlier proceedings, they cannot be permitted to do so now. Reliance was placed on Deva Ram Vs. Ishwar Chand (1995) 6 SCC 733 and Shiv Kumar Sharma Vs. Santosh Kumari (2007) 8 SCC 600. It was further contended that even in the plaint in the present suit it is not the case that the plaintiffs had in the earlier proceedings claimed ownership to the land; xiii. it was further urged that the plaintiffs had in the plaint in the present suit also claimed only Nambardari rights; it is argued that the Nambardars were only for recovery of rent and had no title to the property; that the plaintiffs could be Nambardar only under the ownership of Union of India. Reference was also made to P.T. Munichikkanna Reddy Vs. Revamma (2007) 6 SCC 59 to contend that the plaintiffs could not claim adverse possession. In this context R. Chandevarappa Vs. State of Karnataka (1995) 6 SCC 309; State of Rajasthan Vs. Harphool Singh (2000) 5 SCC 652; Puran Singh Vs. State of Punjab (1975) 4 SCC 518 and Rame Gowda Vs. M. Varadappa Naidu (2004) 1 SCC 769 were also cited. xiv. Lastly it was urged that since the land was required for public project and in national interest even in the event of the CS(OS)1075/2000 Page 17 of 30 plaintiffs succeeding in the suit, the land will nevertheless have to be acquired.

xv. The ASG appearing for the Union of India also relied upon the judgment of this court in Satish Khosla Vs. M/s Eli Lilly Ranbaxy Ltd. 71 (1998) DLT 1 to contend that the plaintiffs having suppressed their pleadings in the earlier legal proceedings are not entitled to the discretionary relief of injunction.

12. The senior counsel for the plaintiffs to meet the argument of, the plaintiffs/their predecessor in the earlier legal proceedings having claimed to be only occupants/licencee, argued that the plaint in earlier suit related to the land in village Mujahidpur, while the suit land is in village Pilanji. It was contended that the earlier suits did not relate to the suit land but related to other lands with respect whereto the plaintiffs/their predecessors were mere occupants/licencees. On query, as to why, if it was so, reference to those suits was made in the plaint in the present suit, it is answered that it is a mistake. It may be noticed that in the writ petition (Supra) also, the land is described as in village Mujahidpur. It was further contended that the documents filed by the plaintiffs and from which the senior counsel for the defendants had pointed out the land to be situated in Mujahidpur not in Pilanji had also been wrongly filed. It was contended that under the Punjab High Court Rules those documents filed in earlier suits were not admissible in evidence and were not in accordance with the Punjab Land Revenue Act. Elaborate submissions were made as to what are the documents of rights and it was contended that the documents CS(OS)1075/2000 Page 18 of 30 filed by the plaintiffs and from which the land appears to be in Mujahidpur were not such documents of rights. It was further contended that the plaintiffs were illiterate people and no proper inquiry had been made from them and it was further contended that if the original records were to be brought, the same would not contain the records, copies of which had been filed mistakenly by the plaintiffs. It was lastly contended that the possession of the plaintiffs being admitted and the plaintiffs being in settled possession were entitled to protect their possession during the trial.

13. For disposal of applications under Order 39 Rules 1 and 2 CPC the test of prima facie case irreparable injury and balance of convenience are to be applied. However, of late the courts have added yet another test. The Supreme Court in Ramniklal N. Bhutta and another v. State of Maharashtra AIR 1997 SC 1236 held as under:

10. Before parting with this case, we think it necessary to make a few observations relevant to land acquisition proceedings. Our country is now launched upon an ambitious programme of all-round economic advancement to make our economy competitive in the world market. We are anxious to attract foreign direct investment to the maximum extent. We propose to compete with China economically. We wish to attain the pace of progress achieved by some of the Asian countries, referred to as "Asian tigers", e.g., South Korea, Taiwan and Singapore. It is, however,

recognised on all hands that the infrastructure necessary for sustaining such a pace of progress is woefully lacking in our country. The means of transportation, power and communications are

in dire need of substantial improvement,

expansion and modernisation. These things very often call for acquisition of land and that too without any delay. It is, however, natural that in most of these cases, the persons affected challenge the acquisition proceedings in courts. These challenges are generally in the shape of writ petitions filed in High Courts. Invariably, stay of acquisition is asked for and in some cases, orders by way of stay or injunction are also CS(OS)1075/2000 Page 19 of 30 made. Whatever may have been the practices in the past, a time has come where the courts should keep the larger public interest in mind while exercising their power of granting stay/injunction. The power under Article 226 is discretionary. It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. And in the matter of land acquisition for public purposes, the interests of justice and the public interest coalesce. They are very often one and the same. Even in a civil suit, granting of injunction or other similar

orders, more particularly of an interlocutory

nature, is equally discretionary. The courts have to weigh the public interest vis-a-vis the private interest while exercising the power under Article 226 indeed any of their discretionary powers. It may even be open to the High Court to direct, in case it finds finally that the acquisition was vitiated on account of non-compliance with some legal requirement that the persons interested shall also be entitled to a particular amount of damages to be awarded as a lumpsum or calculated at a certain percentage of compensation payable. There are many ways of affording appropriate relief and redressing a wrong; quashing the acquisition proceedings is not the only mode of redress. To wit, it is ultimately a matter of balancing the competing interest.

Beyond this, it is neither possible nor advisable to say. We hope and trust that these considerations will be duly borne in mind by the courts while

dealing with challenges to acquisition proceedings.

14. Prior thereto in Shiv Kumar Chadha v. Municipal Corporation of Delhi (1993) 3 SCC 161 also the Supreme Court observed :

30. It need not be said that primary object of filing a suit challenging the validity of the order of demolition is to restrain such demolition with the intervention of the Court. In such a suit the plaintiff is more interested in getting an order of interim injunction. It has been pointed out repeatedly that a party is not entitled to an order of injunction as a matter of right or course. Grant of injunction is within the

discretion of the Court and such discretion is to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the Court that unless the defendant is restrained by an order of

injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of temporary injunction is, thus, to CS(OS)1075/2000 Page 20 of 30 maintain the status quo. The Court grants such relief according to the legal principles - ex debited justitiae,. Before any such order is passed the Court must be satisfied that a strong prima facie case has been made out by the plaintiff including on the question of maintainability of the suit and the balance of convenience is in his favour and refusal of injunction would cause irreparable injury to him.

31. Under the changed circumstance with so many cases pending in Courts, once an interim order of injunction is passed, in many cases, such interim orders continue for months; if not for years. At final hearing while vacating such interim orders of injunction in many cases, it has been

discovered that while protecting the plaintiffs from suffering the alleged injury, more serious injury has been caused to the defendants due to continuance of interim orders of injuction without final hearing. It is a matter of common knowledge that on many occasions even public interest also suffers in view of such interim orders of

injunction, because persons in whose favour such orders are passed are interested in perpetuating the contraventions made by them by delaying the final disposal of such applications. The Court should be always willing to extend its hand to protect a citizen who is being wronged or is being deprived of a property without any authority in law or without following the procedure which are fundamental and vital in nature. But at the same time the judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the Court.

15. In between in Mahadeo Savlaram Shelke and Ors. v. Pune Municipal Corporation (1995) 3 SCC 33 also the Supreme Court observed:

12. In "Modern Law Review", Vol 44, 1981 Edition, at page 214, R.A. Buckley stated that "a plaintiff may still be deprived of an injunction in such a case on general equitable principles under which factors such as the public interest may, in an appropriate case, be relevant. It is of interest to note, in this connection, that it has not always been regarded as altogether beyond doubt whether a

plaintiff who does thus fail to substantiate a claim for equitable relief could be awarded damages". In "The Law Quarterly Review" Vol 109, at page 432 (at p. 446), A.A.S. Zuckerman under Title "Mareva

Injunctions and Security for Judgment in a Framework CS(OS)1075/2000 Page 21 of 30 of Interlocutory Remedies" stated that "if the plaintiff is likely to suffer irreparable or uncompensable damage, no interlocutory injunction will be granted, then, provided that the plaintiff would be able to compensate the defendant for any unwarranted

restraint on the defendant's right pending trial, the balance would tilt in favour of restraining the defendant pending trial. Where both sides are exposed to irreparable injury pending trial, the courts have to strike a just balance". At page 447, it is stated that "the court considering an application for an

interlocutory injunction has four factors to

consider : first, whether the plaintiff would suffer irreparable harm if the injunction is denied; secondly, whether this harm outweighs any irreparable harm that the defendant would suffer from an injunction; thirdly, the parties' relative prospects of success on the merits; fourthly, any public interest involved in the decision. The central objective of interlocutory injunctions should therefore be seen as reducing the risk that rights will be irreparably harmed during the inevitable delay of litigation".

13. In "Injunctions" by David Bean, 1st Edn, at page 22, it is stated that "if the plaintiff obtains an interlocutory injunction, but subsequently the case goes to trial and he fails to obtain a perpetual order, the defendant will meanwhile have been restrained unjustly and will be entitled to damages for any loss he has sustained. The practice has therefore grown up, in almost every case where interlocutory injunction is to be granted, of requiring the plaintiff to undertake to pay any damages subsequently found due to the defendant as compensation if the injunction cannot be justified at trial. The undertaking may be required of the plaintiff in appropriate cases in that behalf. In "Joyce on Injunctions" Vol. 1 in paragraph 177 at page 293, it is stated "Upon a final judgment dissolving an injunction, a right of action upon the injunction bond immediately follows, unless the judgment is superseded. A right to damages on dissolution of the injunction would arise at the determination of the suit at law".

14. It would thus be clear that in a suit for perpetual injunction, the court should enquire on affidavit evidence and other material placed before the court to find strong prima facie case and balance of

convenience in favour of granting injunction otherwise irreparable damage or damage would ensue to the plaintiff. The court should also find whether the plaintiff would adequately be compensated by

damages if injunction is not granted. It is common experience that injunction normally is asked for and granted to prevent the public authorities or the respondents to proceed with execution of or

implementing scheme of public utility or granted contracts for execution thereof. Public interest is, therefore, one of the material and relevant

CS(OS)1075/2000 Page 22 of 30 considerations in either exercising or refusing to grant ad interim injunction. While exercising the discretionary power, the court sould also adopt the procedure of calling upon the plaintiff to file a bond to the satisfaction of the court that in the event of his failing in the suit to obtain the relief asked for in the plaint, he would adequately compensate the defendant for the loss ensued due to the order of injunction granted in favour of the plaintiff. Even otherwise the court while exercising its equity jurisdiction in granting injunction has also jurisdiction and power to grant adequate compensation to mitigate the damages caused to the defendant by grant of injunction restraining the defendant to proceed with the

execution of the work etc., which is retrained by an order of injunction made by the court. The pecuniary award of damages is consequential to the adjudication of the dispute and the result therein is incidental to the determination of the case by the court. The pecuniary jurisdiction of the court of first instance should not impede nor be a bar to award damages beyond it pecuniary jurisdiction. In this behalf, the grant or refusal of damages is not founded upon the original cause of action but the /consequences of the adjudication by the conduct of the parties, the court gets inherent jurisdiction in doing ex debito justitiae mitigating the damage suffered by the defendant by the act of the court in granting injunction restraining the defendant from proceeding with the action

complained of in the suit It is common knowledge that injunction is invariably sought for in laying the suit in a court of lowest pecuniary jurisdiction even when the claims are much larger than the pecuniary jurisdiction of the court of first instance, may be, for diverse reasons. Therefore, the pecuniary jurisdiction is not and should not stand an impediment for the court of first instance in determining damages as the part of the adjudication and pass a decree in that behalf without relegating the parties to a further suit for damages. This procedure would act as a check on abuse of the process of the court and adequately compensate the damages or injury suffered by the defendant by act of court at the behest of the plaintiff.

15. Public purpose of removing traffic congestion was sought to be served by acquiring the building for widening the road. By orders of injunction, for 24 years the public purpose, was delayed. As a

consequence execution of the project has been delayed and the costs now stand mounted. The courts in the cases where injunction are to be granted should necessarily consider the effect on public purpose thereof and also suitably mould the relief. In the event of the plaintiffs losing the suit ultimately, they should necessarily bear the consequences, namely, escalation of the cost or the damages the Corporation suffered on account of injunction issued by the courts. Appellate court had not adverted to any of the material aspects CS(OS)1075/2000 Page 23 of 30 of the matter. Therefore, the High Court has rightly, though for different reasons, dissolved the order of ad interim injunction. Under these circumstances, in the event of the suit to be dismissed while disposing of the suit the trial court is directed to assess the damages and pass a decree for recovering the same at pro rata against the appellants.

16. This court also in matters relating even to copyright and patents has been giving due regards to the element of public interest while dealing with injunction applications. Reference in this regard may be made to i) The Chancellor Masters and Scholars of The University of Oxford Vs Narendera Publishing House 2008 (38) PTC 385 wherein this court declined the relief of injunction with respect to guide books; ii) judgment of the Single Judge (148 (2008) DLT 598) and the Division Bench (MANU/DE/0381/2009) of this court in F. Hoffmann-La Roche Ltd. and Anr. v. Cipla Ltd. where one of the considerations for declining the injunction was the high costs of the drugs of the plaintiff and the comparative low costs of the drugs being marketed in India.

17. The Supreme Court in ONGC Ltd Vs Saw Pipes Ltd AIR 2003 SC 2629 also held that where loss is caused to the public, there is no measure of determining the loss. Instances in that case were given of delays in construction of a bridge or a road which harms the public in general and no individual municipality or government in particular. The Supreme Court in such cases thus held insistence on proof of loss to be not proper.

18. It is the contention of the Union of India and the DDA in the present case that the land aforesaid is required for public works, during the arguments it was contended that the same is urgently CS(OS)1075/2000 Page 24 of 30 required for a temporary godown in relation to DMRC project. In fact, on the day when the senior counsel for the plaintiffs had conceded to construction for the Sports Injury Centre on a portion of the said land, it was suggested that similarly, the works of DMRC be also permitted to be carried out on the said land on the same conditions, i.e in the event of the plaintiffs succeeding in the suit, they would be entitled to compensation for acquisition of the said land as mentioned in order dated 19th August, 2008. However, the senior counsel for the plaintiffs on instructions from the plaintiffs had declined the same.

19. Testing the element of prima facie case in the context of the aforesaid, in my view it cannot be said that the plaintiffs have a prima facie case of being the owners of the land as claimed in the plaint in the present suit. The senior counsel for the plaintiffs, rather than showing the prima facie case of the ownership of the plaintiffs sought to guide the arguments towards whether the defendants have prima facie established acquisition of the land or not. The plaintiffs by addressing lengthy arguments and citing a plethora of case law have though succeeded in pushing this matter to the back burner. However, at this stage, it is not the defence which has to be tested but the case with which the plaintiffs have approached the court which is to be gauged.

20. The single most important factor coming in the way of the plaintiffs establishing a prima facie case of ownership is the stand of the plaintiffs/their predecessors in the earlier litigations of being occupancy tenants/licencees with respect to the said land under the Government of India. I am unable to accept the explanation of the CS(OS)1075/2000 Page 25 of 30 senior counsel for the plaintiffs in this regard. The plaintiffs cannot be classified as villagers. The plaintiffs have been litigating with respect to this valuable land as per their own admissions in the plaint since the year 1962 and are well aware of their rights and have at all stages had the benefit of eminent legal assistance. The plaintiffs have categorically stated in the plaint that the earlier legal proceedings were with respect to the same land with respect whereto the suit was filed. The ingenuity of the explanation of the senior counsel for the plaintiffs of it having been mistakenly stated that the other proceedings were with respect to the same land cannot save the plaintiffs. Mistake has to be pleaded and not argued. It was the plaintiffs who in an attempt to take advantage of the orders in the earlier proceedings whereby the plaintiffs claimed that the defendants had agreed not to disturb the occupation/possession of the plaintiffs, had referred to the same. The plaintiffs cannot be permitted to distance themselves from the same when confronted with the contradictory stand contained in their pleadings in the said proceedings. Similarly, the argument of the senior counsel for the plaintiffs that, the documents filed by the plaintiffs themselves in support of their case and showing the land to be in a village other than the village argued by the plaintiffs now were filed mistakenly, also does not carry much weight. In fact on the basis thereof, at least for the purposes present applications, the edifice of the case built during the arguments falls.

21. I also find considerable force in the contention of the defendants that the plaintiffs having admitted that in the revenue records of the land, "Sarkar Daulatmadar" i.e. the Government has been entered as the owner thereof have at least at this stage not CS(OS)1075/2000 Page 26 of 30 shifted the burden of establishing otherwise. It is the case of the plaintiffs themselves that the land has been so recorded for the last over 40 years. In spite of the same, the plaintiffs did not take any step whatsoever to have the said entries corrected. In fact the plaintiffs themselves have sought to establish their title to the land on the basis of the said revenue records and not on any other document. At this stage, no reason is found to disbelieve the said revenue records and as per which for the last over 40 years prior to the institution of the suit the Government of India is shown as the owner of the land.

22. As far as the claim of the plaintiffs to injunction on the ground of being in possession of the land is concerned, it is not disputed that the land is open; no cultivation is being carried thereon. The principle with respect to such open land is that the same is deemed to be in possession of the person having title thereto. Reliance in this regard can be placed upon Naval Ram, Laxmi Das Devmurari Vs. Vijayaben Jayvantbhai Chauda AIR 1998 Gujarat 17 where it has been held that the concept of possession is an abstract one; the ordinary presumption is that possession follows title; presumption of possession over an open land always is deemed to be that of the owner; an open piece of land shall be presumed to be in possession of the owner unless it is proved by the trespasser that he has done some substantial acts of possession over the land which may excite the attention of the owner that he has been dispossessed; the presumption of owner being in possession of open land becomes strong when the defendant fails to establish the ground on which he claims to have come in possession. This is so because proof of actual possession is impossible on account of nature of such land. In the CS(OS)1075/2000 Page 27 of 30 present case, it is the admitted position that the land has been fenced under orders of the writ court. The plaintiffs themselves have claimed the relief of asking the defendants to remove the encroachers on a portion of the land. For this reason also, it cannot be said that the plaintiffs are entitled to an injunction against their dispossession.

23. As far as the ingredient of irreparable injury is concerned, during the course of lengthy arguments it has been repeatedly urged by the senior counsel for the plaintiffs that the plaintiffs have no objection to the defendants acquiring the land now and paying the prevalent compensation therefor, if required for public purpose as was being urged by the senior counsels/ASG for the defendants. On the same reasoning, concession with respect to 0.647 acres of land was given on 19th August, 2008. Thus, it is not the position that the dispute being with respect to land, order of status quo must follow. This lis is all about compensation for the land i.e. whether it has already been paid at the rates of acquisition of the year 1911 or is to be paid at the rates prevalent today. I do not find any difference in calculating the said value for 0.647 acres or for the entire land. Thus, even in the event of the plaintiffs succeeding, it is not as if the plaintiffs will suffer irreparable injury. The plaintiffs can always be compensated as per their claims.

24. In these circumstances, I am of the view that if injunction, as claimed, is issued, the same is likely to delay the public project for which the land is required. The loss which would be suffered by the public at large would be incalculable and irreparable. No possible condition can be imposed on the plaintiffs to make good the said loss in the event of the plaintiffs ultimately being not found entitled to the CS(OS)1075/2000 Page 28 of 30 relief. Per contra, if injunction is refused and resultantly the land is allowed to be used for public projects and if ultimately the defendants are found to have failed in their defence, the plaintiffs can be compensated.

25. The question of balance of convenience has to be considered with the question of public interest as aforesaid. The city is poised for the Commonwealth Game of the year 2010. The DMRC work on the Mehrauli line for which purpose the land is stated to be required is underway. The loss which will be suffered to the public at large in the event of the said line being not completed in time for the reasons of the said land being not available would be far more than the injury, if any, to the plaintiffs. Thus, the interest of the handful of plaintiffs must give way to the larger public interest.

26. In the face of it having been demonstrated as aforesaid that the plaintiffs have concealed from this court that the plaintiffs had in the earlier proceedings admitted themselves to be licencees/tenants and not claimed themselves to be the owner of the land, the plaintiffs otherwise also are not found entitled to the exercise of any discretion in their favour. The application of the plaintiffs for interim relief being IA.No.4832/2000 is dismissed. IA.No.7382/2007 under Order 39 Rule 4 CPC is allowed. The ad interim orders are vacated.

27. The senior counsel for the plaintiffs has also made elaborate arguments on the application for Hadshikni and/or for having the land demarcated. I, however, find that there is no dispute as to the identity of the land. There was no such dispute at the time of the institution of the suit also. The occasion therefor has arisen owing to the arguments raised of the land being in village Pilanji, in CS(OS)1075/2000 Page 29 of 30 contravention of the case earlier made of the land being in village Mojahidpur and/or Arakhpur Bagh Mochi. In view of such contradictory stands of the plaintiffs, the said application cannot hold up the disposal of the applications for interim relief. There is yet another reason for me to not allow the said application. The entire surrounding area has been developed. The demarcation/Hadshikni in revenue terms was/is carried out with reference to fixed points contained in the revenue records and all of which are likely to have disappeared with the urban development all around the said land. Also such demarcation is likely to lead to objections and in my view for the reasons aforesaid would not serve any purpose at this stage. It would however remain open to the plaintiffs at the stage of evidence to, if entitled to, lead relevant evidence. In fact no court orders are required for such demarcation. The plaintiffs by approaching the revenue authorities and if entitled to can have the said demarcation carried out and lead evidence with respect thereto. In fact the plaintiffs in the last so many years since when the suit has been pending ought to have done so and adverse inference can be drawn against the plaintiffs for the same. IA No.11954/2008 & IA No.4174/2009 are thus dismissed.

28. As far as the application of the defendant DDA for filing additional documents IA No.3352/2009 is concerned, issues having not been framed the same is allowed. The plaintiffs have already been permitted to file additional documents in response thereto. RAJIV SAHAI ENDLAW

(JUDGE)

24th August, 2009

M/PP

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