Ram NaraIn Agarwal and Another Vs. D.D.A. and Others - Court Judgment

Excerpt:
in the instant case, an ex-parte ad interim injunction was granted against the delhi development authority (dda) restraining it from creating any interference in carrying out the additions or alterations and repair work in the suit property - in this lieu, an application was filed to vacate the interim order under order 39 rule 4 of the civil procedure code, 1908 - it was stated that while granting or declining an injunction, the court must consider certain factors - later, it was observed that the plaintiff was under the possession of the property to which the dda had not taken the possession - also, there was no uncontrovertible evidence produced by the dda to show that the suit land was within purview of the acquired property - hence, the balance of convenience was in the favor of the plaintiff and against the dda - thereforee, there was no sufficient ground to vacate the interim order - - byconsent of learned counsel for the parties the application under order xxxix, rules 1and2 as well as the aforementioned application has been takenupfor hearing and disposal jointly. the argumentof learned counsel for the dda that the ratio of decision ofthe apex court in [1988]1scr590 (supra) would not be of any advantage to the plaintiff since his ownership is not clearly established, is not sufficient reasonsfor rendering him ineligible to the protection of thecourt. failure toconfirmtheinterim orders already passed are certain to cause irreparable injury to the plaintiff.ordervikramajit sen, j.1. a permanent injunction has been prayed for restraining thedefendants fromcreatingany obstruction or interference in carrying outtheadditions/alterationsand repair work in the property in suit. interimorders tothis effect were granted on 2.7.1998. subsequently, thepleadingshad beencompletedand the defendant no.1/dda has also filedanapplication under order xxxix, rule 4 for vacation of these interim orders. byconsent of learned counsel for the parties the application under order xxxix, rules 1and2 as well as the aforementioned application has been takenupfor hearing and disposal jointly. 2. ithasbeen contended by shri v.k. sharma, learned counselforthe defendantsthat the disputes stand concluded by a decision ofadivision benchofthis court rendered in the case entitled 'sudershankapoorand anothervs. u.o.i. c.w.p. no. 3351/1991 in which the suitproperty,i.e. khasranos.891and 892 situated in village nawadsmajrahastsal,new delhi,was specifically in consideration, but the writ petitionwasdismissed.itisnot in dispute in the present proceedingsthatthesuit propertyisalso located in these khasras. it is thecontentionofthe learned counsel for the dda that acquisition proceedings in respect ofthe suit property have been completed. the interests of plaintiffs, as wellas thewrit petitioners before the division bench, can be commonly tracedto smt.shanti devi, wife of mauji ram. mr. sharma contended thatsincethe writpetitioners are similarly placed as the present plaintiffsthedismissalof the writ petition would be sufficient reason to vacatetheexparte ad interim injunction, earlier passed by this court. 3. learnedcounselforthe plaintiff has submitted thatthelandin questionbeforethe division bench is different to the land insuitand thatno acquisition proceedings have been taken in respect of thepresen land.in the plaint it has been averred that the plaintiffs hadpurchased and acquired land measuring 960 sq. yards forming a part of khasra nos. 891 and892 which are now publicly known as plots 5, 6 and 7 in aresidential colonyknownas shanti park, village nawada, delhi. it hasbeenfurther averredthat notices under sections 4 and 6 had been issued in respectof thewhole chunk of land measuring 37377 sq. yards forming part ofvarious khasra nos. but acquisition proceedings in respect of the property insuit did not culminate in any acquisition since the suit land was built upon and occupied.learned counsel emphasised that possession of the suit landhas not been taken by the land acquisition collector. my attention was drawn to awrittenstatementfiled on behalf of the u.o.i. in thecourtofthe additional district judge, delhi in respect of award no. 154/86-87 where it hasbeen specifically pleaded on behalf of the u.o.i. thatpossessionof khasrano. 890 (0.05) and 891 (1-5) had not been taken by thegovernment, thesetracts of land being built up areas. he has further drawn myattentionto the document filed on behalf of the dda, being award no. 159(86-87)whereinan area of 317 bighas and 13 bids was from the khasranos.in questionwasexcluded from that award. he has furthersubmittedonthe basisof the award itself that the entire land in khasra nos. 891 and892 hasnotbeen acquired and that at least prima facie, the landownedand occupiedbythe plaintiff falls within the land not so acquired.hehas relied on r.d. gupta v. lt. governor, delhi administration, a.i.r. 1987 sc 2097,amriksingh sabharwal v. kanta devi, (54) 1994 dlt401andsamir sobhan sanyal vs . tracks trade private ltd. and others, : air 1996 sc2102 in supportofhiscontention that a person in settledpossessionhasthe protectionof law and cannot be dispossessed without due process.hehas also relied on : [1988]1scr590 (supra) in which it has been observed that unless possession has been taken, the rights of owners whose land was to be acquired cannot be held to have been extinguished. 4. at this stage of the suit, in granting or declining an injunction, the courtisto consider only three factors, i.e. existenceofprimafacie case, the balance of convenience being in favor of the applicant, and that hewould suffer irreparable loss in the event that the injunctionisnot granted.in my opinion a prima facie case has been made out by theplaintiff. there is no controversy or dispute on the question that the plaintiff is in possession of the property and/or that the dda has not takenpossessionthereof.since the awards have already been publisheditwouldbe appropriate to assume that possession has continued with the plaintifffor thestatedreasons that acquisition of certain propertiescouldnotbe completedbecause they had been built upon. nouncontrovertableevidence hasbeenplaced by the dda to show that the suit landfallswithinthe propertyacquired.it has also not been averred that theplaintiffsare continuing in possession of the land by resisting the efforts of the dda to takepossession of the property. a refusal to grant the injunctionprayed forwouldhave the effect of completely non-suitingtheplaintiff.the argumentof learned counsel for the dda that the ratio of decision ofthe apex court in : [1988]1scr590 (supra) would not be of any advantage to the plaintiff since his ownership is not clearly established, is not sufficient reasonsfor rendering him ineligible to the protection of thecourt.but thisquestion would be an issue yet to be determined by thecourteither the dda should be able to definitively dispel the plaintiffsprimafacie caseonthisaspect, which in my view has notbeenconclusivelydone. thereforeeit can only be concluded that the plaintiff has set upaprima facie case. the learned division bench had dismissed the petitionadvocatingthe above policy inter alias on the ground that the title of the petitioners before them was inchoate since no registered document of titlehad been registered. however, the controversy before the division bench wasas to the legal propriety of the acquisition proceedings. in the present case it is whether the plaintiffs' possession should be protected.thisdecision, thereforee, would not warrant and justify the dda filling thepresent application under order xxxix, rule 4 for the vacation of the suit. 5. thebalance of convenience is in favor of the plaintiff andagainst the dda. i would venture to trace the genesis of decision protectingsettledpossessiontothe consideration that unless aninjunctionofthe natureprayedfor in these proceedings is granted, the interestsofthe plaintiff would be irretrievable altered. it is in the interest ofjustice thatpending a final decision in the suit the status quo shouldbemain-tained and this can only be achieved if the ex-parte ad interiminjunction already granted, is confirmed. 6. ousterfrom possession of an immovable property, or other aspectsof interests in immovable property have been recognised as causing irreparable lossandinjury to the party concerned. failure toconfirmtheinterim orders already passed are certain to cause irreparable injury to the plaintiff. 7. fortheabove consideration i find that no sufficientgroundshave been disclosed for vacating the interim orders passed earlier. the application, being i.a. no. 9265/1999 is dismissed. i have decline to awardcosts infavour of the plaintiff but have declined to do so since itcannotbe saidthat the application was wholly vexatious. i would, however,confirm the ex-parte ad interim injunction granted on 2.7.1998. 8. i.a.no. 5365/1998 is allowed and the interim ordersshallcontinue during the pendency of the suit.

Judgment:
ORDER

Vikramajit Sen, J.

1. A permanent injunction has been prayed for restraining theDefendants fromcreatingany obstruction or interference in carrying outtheadditions/alterationsand repair work in the property in suit. Interimorders tothis effect were granted on 2.7.1998. Subsequently, thepleadingshad beencompletedand the Defendant No.1/DDA has also filedanapplication under Order XXXIX, Rule 4 for vacation of these interim orders. Byconsent of Learned Counsel for the parties the application under Order XXXIX, Rules 1and2 as well as the aforementioned application has been takenupfor hearing and disposal jointly.

2. Ithasbeen contended by Shri V.K. Sharma, Learned Counselforthe Defendantsthat the disputes stand concluded by a decision ofaDivision Benchofthis Court rendered in the case entitled 'SudershanKapoorand AnotherVs. U.O.I. C.W.P. No. 3351/1991 in which the suitproperty,i.e. KhasraNos.891and 892 situated in village NawadsMajraHastsal,New Delhi,was specifically in consideration, but the Writ Petitionwasdismissed.Itisnot in dispute in the present proceedingsthatthesuit propertyisalso located in these Khasras. It is thecontentionofthe Learned counsel for the DDA that acquisition proceedings in respect ofthe suit property have been completed. The interests of Plaintiffs, as wellas thewrit petitioners before the Division Bench, can be commonly tracedto Smt.Shanti Devi, wife of Mauji Ram. Mr. Sharma contended thatsincethe WritPetitioners are similarly placed as the present Plaintiffsthedismissalof the Writ Petition would be sufficient reason to vacatetheexparte ad interim injunction, earlier passed by this Court.

3. LearnedCounselforthe Plaintiff has submitted thatthelandin questionbeforethe Division Bench is different to the land insuitand thatno acquisition proceedings have been taken in respect of thepresen land.In the plaint it has been averred that the Plaintiffs hadpurchased and acquired land measuring 960 sq. yards forming a part of Khasra Nos. 891 and892 which are now publicly known as Plots 5, 6 and 7 in aresidential colonyknownas Shanti Park, Village Nawada, Delhi. It hasbeenfurther averredthat notices under Sections 4 and 6 had been issued in respectof thewhole chunk of land measuring 37377 sq. yards forming part ofvarious Khasra Nos. But acquisition proceedings in respect of the property insuit did not culminate in any acquisition since the suit land was built upon and occupied.Learned Counsel emphasised that possession of the suit landhas not been taken by the Land Acquisition Collector. My attention was drawn to aWrittenStatementfiled on behalf of the U.O.I. in theCourtofthe Additional District Judge, Delhi in respect of award No. 154/86-87 where it hasbeen specifically pleaded on behalf of the U.O.I. thatpossessionof KhasraNo. 890 (0.05) and 891 (1-5) had not been taken by theGovernment, thesetracts of land being built up areas. He has further drawn myattentionto the document filed on behalf of the DDA, being Award No. 159(86-87)whereinan area of 317 Bighas and 13 bids was from the KhasraNos.in questionwasexcluded from that Award. He has furthersubmittedonthe basisof the award itself that the entire land in Khasra Nos. 891 and892 hasnotbeen acquired and that at least prima facie, the landownedand occupiedbythe plaintiff falls within the land not so acquired.Hehas relied on R.D. Gupta v. Lt. Governor, Delhi Administration, A.I.R. 1987 SC 2097,AmrikSingh Sabharwal v. Kanta Devi, (54) 1994 DLT401andSamir Sobhan Sanyal Vs . Tracks Trade Private Ltd. and Others, : AIR 1996 SC2102 in supportofhiscontention that a person in settledpossessionhasthe protectionof law and cannot be dispossessed without due process.Hehas also relied on : [1988]1SCR590 (supra) in which it has been observed that unless possession has been taken, the rights of owners whose land was to be acquired cannot be held to have been extinguished.

4. At this stage of the suit, in granting or declining an injunction, the Courtisto consider only three factors, i.e. existenceofprimafacie case, the balance of convenience being in favor of the applicant, and that hewould suffer irreparable loss in the event that the injunctionisnot granted.In my opinion a prima facie case has been made out by thePlaintiff. There is no controversy or dispute on the question that the Plaintiff is in possession of the property and/or that the DDA has not takenpossessionthereof.Since the Awards have already been publisheditwouldbe appropriate to assume that possession has continued with the Plaintifffor thestatedreasons that acquisition of certain propertiescouldnotbe completedbecause they had been built upon. Nouncontrovertableevidence hasbeenplaced by the DDA to show that the suit landfallswithinthe propertyacquired.It has also not been averred that thePlaintiffsare continuing in possession of the land by resisting the efforts of the DDA to takepossession of the property. A refusal to grant the injunctionprayed forwouldhave the effect of completely non-suitingtheplaintiff.The argumentof Learned Counsel for the DDA that the ratio of decision ofthe Apex Court in : [1988]1SCR590 (supra) would not be of any advantage to the Plaintiff since his ownership is not clearly established, is not sufficient reasonsfor rendering him ineligible to the protection of theCourt.But thisquestion would be an issue yet to be determined by theCourteither the DDA should be able to definitively dispel the Plaintiffsprimafacie caseonthisaspect, which in my view has notbeenconclusivelydone. thereforeeit can only be concluded that the Plaintiff has set upaprima facie case. The Learned Division Bench had dismissed the Petitionadvocatingthe above policy inter alias on the ground that the title of THE petitioners before them was inchoate since no registered document of titlehad been registered. However, the controversy before the Division Bench wasas to the legal propriety of the acquisition proceedings. In the present case IT is whether the Plaintiffs' possession should be protected.Thisdecision, thereforee, would not warrant and justify the DDA filling thepresent application under Order XXXIX, Rule 4 for the vacation of the suit.

5. Thebalance of convenience is in favor of the Plaintiff andagainst the DDA. I would venture to trace the genesis of decision protectingsettledpossessiontothe consideration that unless aninjunctionofthe natureprayedfor in these proceedings is granted, the interestsofthe Plaintiff would be irretrievable altered. It is in the interest ofjustice thatpending a final decision in the suit the status quo shouldbemain-tained and this can only be achieved if the ex-parte ad interiminjunction already granted, is confirmed.

6. Ousterfrom possession of an immovable property, or other aspectsof interests in immovable property have been recognised as causing irreparable lossandinjury to the party concerned. Failure toconfirmtheinterim orders already passed are certain to cause irreparable injury to the Plaintiff.

7. Fortheabove consideration I find that no sufficientgroundshave been disclosed for vacating the interim orders passed earlier. The application, being I.A. No. 9265/1999 is dismissed. I have decline to awardcosts infavour of the Plaintiff but have declined to do so since itcannotbe saidthat the application was wholly vexatious. I would, however,confirm the ex-parte ad interim injunction granted on 2.7.1998.

8. I.A.No. 5365/1998 is allowed and the interim ordersshallcontinue during the pendency of the suit.