Delhi Development Authority vs Hakam Singh and Another

Indermeet Kaur, J.—This appeal has impugned the judgment and decree dated 01.01.2004 which had reversed the findings of the trial Judge dated 08.07.2004. Vide judgment and decree dated 08.07.2004, the suit filed by the Plaintiff i.e. Hakam Singh seeking permanent injunction against the Defendants to the effect that he be not dispossessed from his taxi service station i.e. New Amar Taxi Service Station (at the site near Kalkaji, Bhairon Mandir, opposite Nehru Place, Mandir Marg, Kalkaji Mandir, New Delhi) (hereinafter referred to as the ''suit property'') had been dismissed. The impugned judgment had reversed this finding. Suit of the Plaintiff stood decreed.

The case of the Plaintiff is that in 1976, the then District Magistrate Mr. Sushil Kumar sanctioned the aforenoted taxi stand in the name of the Plaintiff. This document i.e. the communication dated 07.01.1976 of the District Magistrate had been proved in the trial court as Ex. PW-6/1. Further contention of the Plaintiff is that on 21.05.1980, the then Commissioner of Police had sanctioned the taxi stand as a general taxi stand in the name of the Plaintiff; the Plaintiff is running this taxi stand now since the last 20 years. This document had been proved as Ex. PW-8/1. Further contention of the Plaintiff is that right of the Plaintiff as a tehbazari right had been recognized; the Plaintiff has regularly been paying tehbazari charges to the Defendant i.e. MCD; receipts to the said effect had been proved as Ex. PW-8/4 to Ex. PW-8/20; these documents are w.e.f. 1976 to 1993. Further contention was that the electricity and water connection including telephone connection has also been made by the Plaintiff. The Defendant was threatening to dispossess him from the site; cause of action had arisen on 21.09.1993. Present suit was accordingly filed.

In the written statement, the defence of the Defendant was that the land was initially owned by the Ministry of Rehabilitation (MOR) and has since been handed over to the DDA; it at the disposal of the DDA. Reliance has been placed upon Ex.DW-1/1 & DW-1/2 which had been proved through the version of DW-1 a Junior Engineer of the DDA to substantiate this submission. The impugned judgment had examined both the said documents. Ex.DW-1/1 dated 02.09.1982 is a Notification of the Government of India, Ministry of Rehabilitation stating that certain unutilized lands within the urban limits of Delhi under the charge of Department of Rehabilitation have been transferred to the DDA. Along with this document two annexures have been appended which make reference to "developed lands" and "undeveloped lands". In the category of "developed lands" Kalkaji finds mention at serial No. 10; total area mentioned is 16247. In the list of "un-developed lands" the name of locality at serial No. 9 is Kalkaji and the total land in acres mentioned is 84.32. These serial numbers have been highlighted by learned Counsel for the Appellant to substantiate his submission that these documents had substantiated the stand of the DDA that the site i.e. suit property had been transferred by the Ministry of Rehabilitation to the DDA. Attention has also been drawn to Ex.DW-1/2. This is a Government of India letter sent by the Assistant Engineer, Ministry of Home Affairs, Rehabilitation Division to the DDA wherein it has been mentioned that two more sites have been handed over to the representatives of the DDA which included

(i) Lands near police station Opposite Nehru Place Shopping Centre-cum-office complex, Near Bharo Mandir Petrol Pump\\

(ii) Open land in between house No. C/55 & C/56 Kalklaji

The impugned judgment had noted that both these documents do not in any manner establish that the suit land has also since been transferred to the DDA. Testimony of DW-1 had been adverted to. DW-1 in his cross-examination had admitted that in Ex.DW-1/1, there is no mention of the site i.e No. 105 which is the suit land; he has no other record to show that the land had been taken over by the DDA. DW-1 has further admitted that the suit land is a taxi stand and as per the survey conducted it was in the name of Hakam Singh i.e. the Plaintiff. The documentary evidence produced by the Plaintiff i.e. Ex. PW-6/1, Ex. PW-8/1 & Ex. PW-8/4 to Ex. PW-8/20 had weighed in the mind of the first appellate court to hold that the Plaintiff had proved that since 1976 under the orders of the District Magistrate which were thereafter confirmed by the Commissioner of Police, he was occupying this taxi stand; he was paying the tehbazari charges to the MCD. Per contra, the Defendants have failed to prove their ownership on the suit land or that the suit land has been transferred to the DDA by the Ministry of Rehabilitation. Neither of the aforenoted two documents relied upon by the Defendants i.e. Ex.DW-1/ & Ex. DW-1/2 had any reference to the suit land.

This finding in no manner can be said to be perverse. Relevant extract of the finding in the impugned judgment reads as follows:

As regards issue No. 1, whether the Plaintiff is The bazari holder in respect of the suit premises, ld. Trial Court rightly came to the conclusion that PW-7 and PW-8 have deposed that Plaintiff/Appellant is a Teh Bazari holder in respect of the suit premises and Appellant had also proved on record Teh bazari receipt has exhibited as Ex. PW-8/4 to Ex. PW-8/20. Even the Defendant No. 1 MCD in its written statement had stated that Plaintiff/Appellant is a Teh bazari holder under it with respect to the suit premises and there was no challenge to this evidence led by DDA as such this issue was decided in favour of the Plaintiff. Findings in regard to this issue was not even challenged by Respondent DDA in appeal as such this findings is reaffirmed.

As regards issue No. 2 Ld. Trial Court came to conclusion that the Defendant relied upon Ex. DW-1/1 which is the copy of the order dated 02.09.1982 through which the disputed land was transferred to DDA from the Ministry of Rehabilitation.

Physical possession of the land was handed over to DDA vide letter Ex. DW-1/2 and these documents sufficiently proved that the suit belongs to DDA. Even if that is so, the sole question for consideration is whether the Appellant can be dispossessed from the suit premises without due process of law.

In this regard ld. Trial court came to the conclusion that mere sanction of electricity and water connection does not create any right in favour of the Appellant with respect to the suit property which belongs to DDA. The mere collecting of Teh bazari charges by MCD also does not confer any right in favour of the Appellant/Plaintiff. Similarly NOC granted to the Appellant by police authority are of no help to him. The District Magistrate or police authority cannot create any interest in favour of the Appellant/Plaintiff in respect to the suit premises so as to oust right of the DDA as these authorities were not having any title over the title of the DDA. Although it is correct that mere grant of electricity, water and telephone connection does not create right in favour of the Appellant with respect to the suit property but it has come on recur that as per the case of Respondent themselves, the land in dispute was transferred to DDA by Ministry of Rehabilitation in the year 1982. However, the Appellant is in possession of the suit property since the order 1976 in as much as the land was allotted to him by District Magistrate vide order dated 07.01.1976 vide letter Ex. PW-6/1 and thereafter vide order dated 21.05.1980 Commissioner of Police Sh. P.S. Bhinder also granted him permission to run taxi stand vide order Ex. PW-8/1 meaning thereby that much prior to the transfer of the land to DDA by Ministry of Rehabilitation, the Plaintiff/Appellant was in legal possession of the suit premises by virtue of the order of Ld. Amrit Lal Sharma, Junior Engineer has in his examination in chief deposed that the disputed land is in site No. 105 in Kalkaji in an area of 7680 sq. yards and the land was transferred to DDA under the package deal vide order dated 02.09.1986, the Appellant/Plaintiff was removed from the suit land on 29.01.1993 by DDA however in cross-examination, he admitted that he visited the site and there is a taxi stand in the name and style of New Amar Taxi Services which is in the name of Hakim Singh. He also admitted that if any site is allotted by any government department, the intimation for such allotment is always sent to DDA and even before allotment, an approval is taken from DDA. He admitted that in Ex. DW-1/1 which is copy of the order vide which according to him, the land in dispute was transferred to DDA from the Ministry of Rehabilitation there is no mention of site No. 105 i.e. the suit land. He also admitted that he did not bring any record to show that fencing had been done by DDA or land was taken by DDA on 29.01.1984. He also could not say whether any demolition had taken place on 29.01.1983. Under the circumstances, it is not even proved that the suit property was form part of land which has been transferred to DDA under the package deal. Similarly except for oral and bald testimony of the witness that Appellant/Plaintiff was removed from the land by the Respondent DDA on 29.01.1983, no documentary evidence was led in this regard. It is the case of the Plaintiff/Appellant that he is still in possession of the suit possession. In view of these circumstances, the sole question for consideration is whether the Respondent can remove the Plaintiff/Appellant without due process of law.

In Yar Muhammad and Another Vs. Lakshmi Das and Others, , it was held by full bench of Hon''ble Allahabad High Court as under:

Law respects possession even if there is no title to support it. It will not permit any person to take the law in his own hands and to dispossess a person in actual possession without having recourse to a Court. No person can be allowed to become a Judge in his own cause.

In M.C. Chockalingam and Others Vs. V. Manickavasagam and Others, , Hon''ble Apex Court held that law forbids forcible dispossession, even with the best of title. In Krishna Ram Mahale (Dead), by his Lrs. Vs. Mrs. Shobha Venkat Rao, it was held that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law. In Nagar Palika, Jind Vs. Jagat Singh, Advocate, Hon''ble Supreme Court held that disputed questions of title are to be decided by due process of law, but the peaceful possession is to be protected from the trespasser without regard to the question of the origin of the possession.

The matter also come up for consideration before Hon''ble Apex Court in Rame Gowda (D) by Lrs. Vs. M. Varadappa Naidu (D) by Lrs. and Another, r. wherein it was held by Hon''ble Apex Court as under:

It is thus clear that so far as the Indian law is concerned, the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come the aid of a person in peaceful and settled possession by injunction even rightful owner from using force or taking the law in his own hands.

The concept of settled possession and the right of possessor to protect his possession against the owner has come to be settled by a catena of decisions.

In Munshi Ram v. Delhi Admn. AIR 1968 SC 702 it was held that no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in the due course of law, he is entitled to defend his possession even against the rightful owner. But merely stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which is a trespasser is entitled to defend against the rightful owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not have the effect or interrupting the possession of the rightful owner.

In Puran Singh and Others Vs. The State of Punjab, the Hon''ble Apex Court held that it is difficult to lay down any hard and fast rule as to when the possession of a trespasser can mature into settled possession. The "settled possession" must be

(i) effective,

(ii) undisturbed and

(iii) to the knowledge of the owner or without any attempt at concealment by the trespasser.

In both these case, the Hon''ble Supreme Court had approved the statement of law made in Horam v. R. AIR 1949 All 564 wherein a distinction was drawn between the trespasser in the process of acquiring possession and the trespasser who had already accomplished or completed his possession wherein the true owner may be treated to have acquiesced in while the former can be obstructed and turned out by the true owner even by using reasonable force, the letter may be dispossessed by the true owner only by having recourse to the due process of law for reacquiring possession over his property.

In view of these legal position in the instant case undisputedly, the Appellant is in settled possession of the suit premises as far as back in 1976. It cannot be said that he was a trespasser in as much as he was allotted site initially by virtue of order of District Magistrate and thereafter by the order of Commissioner of Police. Admittedly MCD is also collecting Teh bazari fee from the Appellant. Under the circumstances, even if the land has been acquired by the DDA, it can take possession of the suit premises from the Plaintiff Appellant only in accordance with law. Under the circumstances, the findings by ld.trial court in regard to issue No. 3 is set aside. Appeal filed by the Appellant is allowed and a decree is passed in favour of the Appellant and against the Respondent/Defendant from dispossessing the Appellant from the site shown in the site plan Ex. PW-8/2 i.e. taxi stand at Bhairon Mandir Marg, Kalkaji Extension, Opposite Nehru Place, New Delhi except without due process of law.

This is a second appeal. It had been admitted and on 31.10.2006, the following substantial question of law was formulated:

Whether the injunction could have been granted in favour of the Respondents and against the Appellant despite Appellant being true owner of the property?

The Appellant has failed to establish his ownership. The Respondent being in settled possession could not be dispossessed without due process of law. In view of the aforenoted discussion, the substantial question of law is answered accordingly. It is in favour of the Respondent and against the Appellant. There is no merit in this appeal. Appeal as also pending applications are dismissed.