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IN THE COURT OF Dr. KAMINI LAU: ADDL.
DISTRICT JUDGE: DELHI
Suit No. 595/2004
Dargah Panch Peer vs. UOI
ORDER:
Vide this combine order I propose to decide the application under Order 39 Rule 1 and 2 CPC and under Order 39 rule 4 CPC filed by the defendant no. 6. Briefly the facts of the case are as under:
The plaintiff has filed the present suit seeking recovery of possession of the land which according to the plaintiff belongs to "dargah panch peer" ("dargah 5 pir"), measuring 3 bigha 16 biswas forming part of Khasra no. 159/4, Mauja Alipur Palangi Hassanpur, Tehsil Mehrauli (now Tehsil Kapashera) of the revenue estate of village Palangi, Delhi. According to the plaintiff the said land has been illegally allotted to the defendant no. 6 i.e. Civil Services Officers Institute, Kasturba Gandhi Marg, New Delhi, by the L&DO, Ministry of Urban Affairs and Employment, Nirman Bhawan, New Delhi who is the defendant no. 2 in the present case vide their letter of allotment bearing no. L1117(45)/ 98/775 dated 03.12.1998 which land is measuring 3.52 acres in Vinay Marg, New Delhi as per L&DO's plan no. 628 for : 1 : setting up club. It is stated that the possession of the said land has already been given to the defendant no. 6 on 01.11.2001 and by way of the present suit the plaintiff also seeks cancellation of the letter of allotment no. LII17(45)/98/775 dated 03.12.1998 of the L&DO, Ministry of Urban Affairs and Employment, Nirman Bhawan thereby allotting the aforesaid land of 3.52 acres in Vinay Marg, New Delhi as per L&DO's plan no. 628 for setting up of club whose possession had been handed over to the defendant no. 6 on 1.11.2001. The plaintiff by way of present suit also seeks recovery of damages of Rs.15,00,000/ (Rs. Fifteen lacs) for the damage caused to the built up portion of water tank, boring water pump and the construction of Baba Ka Dhuna, Huzra Mardana and Huzra Zanana as well as the rooms for stay of visitors performing flower ceremony and Chaddar ceremony on the Mazzar of Hazarat Panch Per Chisti Baba at the Dargah place on the land of the Mazzar bearing Khasra no.43 & 44 Arakpur Bagh Mochi, Tehsil Mehrauli, New Delhi with old khasra of land no 159/4 Mauja Alipur Palangi Hassanpur Tehsil Mehrauli (now Tehsil Kapashera) of the revenue estate of village Palangi Delhi of the Shamlath Deh land.
The suit of the plaintiff has been allowed to be amended vide separate order and after the said amendments : 2 : the plaintiff has not brought on record the subsequent developments and now seeks to restrain the defendants from breaking / cutting/ felling down the existing trees or uprooted the existing trees etc. standing within the vicinity of the plaintiff Dargah on the ground that the said trees are a property of the Dargah. The plaintiff has also raised an additional arguments regarding the act of the defendants of cutting/felling/uprooted the trees being against the government policy and also being violative of the existing law. It is agitated that the permission/ exemption so granted is not in accordance with the procedure prescribed under the Preservation of Trees Act.
On 19.3.2008 the plaintiff had filed the present application under order 39 Rule 1 and 2 CPC seeking to restrain the defendants their agents associates, officials or any body else on their behalf from cutting breaking down the exiting trees and or uprooting the existing trees etc. standing within the vicinity of the plaintiff Dargah Panch Peer ground New Delhi as shown in the attached photographs measuring 3 bighas 14 biswas forming part of Khasra No.43 and 44 Arakpur Bagh Mochi Tehsil Mehrauli New Delhi with Old Khasra of land No.159/4 Mauja Alipur Palangi Hassanpur Tehsil Mehrauli (Now Tehsil Kapashera) of the revenue estate : 3 : of village Pilangi Delhi in any manner whatsoever till the final disposal of the main suit in order to meet the ends of justice. It is stated that the impugned threatened action of defendants in cutting the trees standing within the vicinity of the dargah is illegal, arbitrary and without any jurisdiction as the said trees are the private property of the plaintiff Dargah. According to the plaintiff, as per the policy of the Government no tree can be cut and the said threatened action of defendants is also against the provisions of laws and bye laws of the Prevention of Pollution Act (sic). It is stated that the threats for the said purposes were extended by defendants firstly on 12.08.2007, who also visited the site for executing their evil designs but could not succeed. Further, they again came to the site on 16.08.2007 but could not succeed and lastly now they have come at the site on 16.03.2008 along with heavy tools used for cutting the trees as there were 25 person on behalf of defendants, they started breaking the down trees without any rhyme or reason as the said trees are not hazardous nor create any sort of hindrance nor affect the rights of any person or individual or organization or same violates the laws of the defendants. It is stated that the said trees are the properties of the plaintiff trust and are almost 70 years old and were grown on the dargah land by the Gaddi : 4 : Nashin for greenery purposes.
The plaintiff is also stated to have informed the concerned SHO and given a telephone call at No.100 pursuant to which I.O from PS Chanakayapuri came at the site but since there was no order from the court, the concerned SHO guided the plaintiff to approach the court of law and get the stay against the defendants. It is contended that the plaintiff and its devotees have many times requested the defendant to desist from their evil motives and designs but their threats in cutting the trees on the Dargah land are still subsisting and continuing. According to the plaintiff, in case if the defendants succeed in their nefarious motives and designs, then in the eventuality the devotees coming for Namaz to the Dargah in large numbers, are bound to suffer irreparable loss and injury and the purpose of filing the suit would become infructuous.
Only the defendant no. 6 has filed a reply to the said application and no reply has been filed by the defendant nos. 1, 2, 3, 5, 7 and 8. In their reply to the said application the defendant no. 6 has raised a preliminary objection that the plaintiff has no primafacie case in its favour since the defendant no. 6 had applied to the L&DO Ministry of Urban Development, Nirman Bhawan, New Delhi for allotment of : 5 : land for setting up Civil Services Officer's Institute who vide their letter No. LII17 (45)/98/775 dated 3.12.1998 allotted the land measuring 3. 52 acres at Vinay Marg, New Delhi as per L&DO plan No. 628 to the defendant no. 6 for setting up of an Institute. The possession of the land was handed over to the defendant no. 6 on 1.11.2001 after making the payment of Rs. 29,02,270/ through Cheque No. 006351 dated 13.1.1999 in favour of L&DO, Nirman Bhawan, New Delhi. Subsequently the Ministry of Urban Development vide letter no. L&DO/No.LII17(45)O5/16 dated 13.1.2006 increased the land from 3.52 acres to 4.23 acres and demanded Rs.2,22,89,110/. The earlier amount of Rs.29,02,270/ was adjusted and a final payment of Rs.1,98,42,453/ was made vide cheque no.442948 dated 22.2.2006 and hence, the defendant no. 6 is the true owner and is in possession of the land on which the plaintiff has no right, title or interest.
According to the defendant no. 6 the plaintiff has concealed material facts from this court and has not approached the court with clean hands due to which reason the plaintiff is not entitled for any equity from the court. It is also stated that the defendant no. 6 had applied to MCD for the new scheme in respect of the application for sanction of the same which was sanctioned vide order dated 20.4.2006 of : 6 : the order of Chairperson, NDMC and the defendant no. 6 was informed about the same vide letter No. CA/BP/CSOI, Vinay Marg/D45944598 dated 13.7.2007 and statutory reference was made by the NDMC to DUAC for the clearance of the building plan which was approved by DUAC vide letter no. 27(4)/2007DUAC dated 17.5.2007.
According to the defendant no. 6 since there were some trees on their land they had sought permission from the Department of Environment, Forest and Wildlife, Govt. of NCT of Delhi to cut the trees on which a detailed survey was conducted by the Department of Environment, Forest and Wildlife who marked the trees to be fell. The defendant no. 6 has placed its reliance on the notification issued by the Lt. Governor of NCT of Delhi on 20.10.2007 and submits that they had been granted permission to cut 185 trees with the condition that they would raise 1772 trees in accordance with the rules made under the Delhi Preservation of Trees Act and had deposited a security for the same. According to the defendant no. 6 the said act of cutting of trees was being done with the permission from the competent authority in accordance with law and they had also taken the permission from the Airport Authority of India by obtaining a NOC for flight clearance.
: 7 : On merits it has been denied that the defendant no. 6 has cut down the trees in the Dargah and that the said trees were 70 years old. It is stated that the trees are the property of the defendant no. 6 and they have every right to cut the same in accordance with law since they have obtained the requisite permission from the competent authority. It is stated that the plaintiff/ applicant has deliberately made attempt to give the communal colour by way of putting the sentiments of the Muslim community.
The record reveals that vide order dated 3.4.2008 this court had granted interim injunction and restrained the defendant no. 6 from cutting down/ pruning any trees in the disputed property. Pursuant to the said stay the defendant no. 6 has filed an application under Order 39 Rule 4 CPC read with Section 151 CPC on 5.4.2008 for vacation of stay wherein it has been contended that the plaintiff has deliberately concealed the material facts regarding the earlier suit bearing no. 379/2001 against DDA, NDMC, the defendant no. 6 Commissioner of Police, SHO PS Chanakyapuri and L&DO where they had sought to restrain the defendants from raising any construction at the Dargah place by way of permanent and mandatory injunction. It is contended that in the said suit the Ld. Civil Judge vide order : 8 : dated 7.11.2001 had held that the plaintiff has not filed any documents to show his right, title over the land in dispute and no ground for ad interim injunction was made out. According to the defendant no. 6 since then the matter is pending for arguments on the injunction application, the same is being delayed by the plaintiff on one ground or the other.
According to the Ld. Counsel for the defendant no.
6. on 3.4.2008 the matter was called before this court around 11:20 am and when he appeared before this court it was learnt that the order was being dictated vide which the defendant no. 6 was restrained from cutting down/ pruning any tree in the disputed property till the next date of hearing and it was also observed by this court that it is not clear as to whether it had been done after taking the permission from the competent authority or not. It is submitted that the counsel for the applicant was not granted any opportunity to be heard during the course of dictation of the order and only his appearance was taken on record. Further, the counsel for applicant has stated that when he made the query in respect of the order he was informed that the plaintiff had moved an application under Order 39 Rule 1 and 2 read with Section 151 CPC and an order has been passed on the said application after restoring the suit and since the order has already been passed : 9 : the applicant could not produce the relevant documents before this court to rebut and contradict the allegations made by the plaintiff.
According to the defendant no. 6 they are the sole owners of the property in question and have obtained all necessary permissions from the concerned authorities in accordance with law. It is submitted that the order dated 3.4.2008 has caused irreparable injury and undue hardship to them due to which reason they have now sought the vacation of stay.
In their reply to the application under order 39 Rule 4 CPC the plaintiff has stated that they have already declared and set out in the present suit that an injunction suit is pending and there has been no suppressions as alleged. According to the plaintiff, the government is not the owner of the suit property which is a durgah/ shrine of a Panch Peer which has long been held in veneration by the public as wakf for religious pious and charitable purposes recognized by the Muslim law in the area of 3 bighas 6 biswas by measurement shown as public wakf property and dedication recorded in the Central Revenue record vide fard jama bandi. It is stated that the said property is wakf since since times immemorial for a religious purpose for celebrating the annual urs death : 10 : anniversary/ barsi of the settlor of Peer Panch Peer performance of ceremonies by the Khadim Sharif and there is regular burning of lamps in the Durgah day and night from time immemorial over 150 year back performance of annual Fateha of the settlor and the members of his family. It is also stated that the ceremony of the fateha consists in recital of prayers for the welfare of the souls of deceased persons accompanied with distribution of alms of the poor and it had constructed place for shelter of the visitors the Hujra Dhuna etc. and had open space for annual urse ceremony and other religious function and offering of prayers by the public in large number which were unfortunately destroyed by the Defendant no.6 against which reports have been lodged and injunction suit is filed and now claim of possession of the said area has been made out in the plaint and the application for injunction. According to the plaintiff, they have been wrongfully dispossessed from the suit land and they are claiming the possession of the area of the land of Dargah Panch Peer back, as held by the Dargah for the time immemorial in the revenue records and as on date and the government cannot acquire the same for sale purposes. It is also stated that the DDA in its written statement has expressed that the land which is the property of the Durgah : 11 : has been sold out to Defendant no.6 which land of Dargah was taken by DDA without notice to the Plaintiff and all activity by NDMC and DDA was carried on between themselves on papers only and knowing the fact that the Durgah land cannot be acquired nor it is liable to be sold, yet this has been done and hence this action of the Defendant and NDMC has been challenged before this court. The plaintiff has placed its reliance on the letter of allotment dated 03.12.1998 where in clause (xi) it has been mentioned that:
xi) the Allottee shall construct the building on the area measuring 0.352 acres i.e 1424.50 sq.mtr. And the balance area measuring 3.168 acres will be maintained as green.
According to the plaintiff, the green area has to be kept as it is and no tree is liable to be cut or removed for the reason that it is contrary to the terms of allotment and contrary to the interest of Plaintiff as green area is the property of the plaintiff Durgah and all the trees on the green land of the property of the Durgah Plaintiff as built by the plaintiff and no part of the green area in measurement of 3 bighas shown red in the application is liable to be interfered : 12 : with or disturbed in any manner and has to be kept in the same manner as originally existing.
I have considered the submissions made by the Ld. counsels for both the sides. It is argued by the Ld. counsel appearing for the plaintiff/applicant that the Dargah in question is ancient being almost 200 years old and is situated on land measuring 3 bighas as shown in the site plan filed alongwith the suit and that the entire sale consideration has wrongly been passed to the department. It is contended that the Dargah land in possession of the defendant no. 6 measuring 3 Bighas is liable to be restored back and no construction activity can be carried out by the defendant no. 6 since the department has in para no. IX of the letter of allotment mentioned that this area is required to be kept as green but the act of cutting trees by the defendant no. 6 with the help of other defendants is diminishing the sanctity of the green belt of the area and no cutting of trees can be allowed in any manner which is contrary to the terms of allotment. According to the plaintiff any permission obtained by the department has been procured illegally and by suppression of material facts and is not implementable in view of the fact that the user of land as provided in the Master Plan shows that the area is otherwise required to be maintained as green and : 13 : therefore any permission obtained by the defendant no.6 is in violation of the Master plan.
It is also argued that the trees which are proposed to be felled are on the land of Dargah and no permission could otherwise have been granted by the department of Environment, Forest and Wild Life, Government of Delhi for cutting/felling of trees as it is causing damage to the land of Dargah which was developed 200 years ago in the requirement of public.
I have considered the arguments advanced before me at length and also the various authorities placed on record. Further, I have duly gone through the provisions of Delhi Municipal Corporation Act, Delhi Development Act and also perused the Master plan for Delhi 2021 as notified on 7.2.2007 vide SO No. 141 published in Gazette of India Extra Ordinary [Part - II - Section 3 - Sub Section (ii)], Zonal plan of the area and modified layout plan/ survey plan. It is not disputed that the plaintiff has filed the present suit challenging the allotment made by the defendant no. 2 in respect of 3.52 acres land to the defendant no. 6 claiming that out of the said land 3 bighas 14 biswas forming part of Khasra No.43 and 44 Arakpur Bagh Mochi Tehsil Mehrauli New Delhi with Old Khasra of land No.159/4 Mauja Alipur Palangi Hassanpur : 14 : Tehsil Mehrauli (Now Tehsil Kapashera) claiming that it belongs to the plaintiff Dargah which is situated in the vicinity. Vide its suit the plaintiff is also seeking the cancellation of the said allotment on the ground that the said allotment is bad in law and is illegal. It has been pointed out in the pleadings that by way of notification in the year 1974 a part of the land in question which has not been allotted to the defendant no. 6 had been handed over to the DDA though a part of the said land on which the plaintiff has claimed his right was never been handed over to the DDA and is free from acquisition. According to the plaintiff, the defendant no. 6 without a proper demarcation has constructed a boundary wall and included the land belonging to the Dargah by demolishing and destroying the constructed portion of the Dargah. It is also stated that earlier a suit for permanent injunction had been filed against the defendant nos. 2, 3 and 6 seeking to restrain them from raising any construction which suit is also pending before the court of Ld. Civil Judge but now since the land is reported to have been allotted to the defendant no. 6 the present suit has been filed for recovery of possession, cancellation of letter of allotment and damages. It is also pointed out that the plaintiff has already moved the court of the Ld. District & Sessions Judge, Delhi for consolidation of : 15 : both cases filed by the plaintiff i.e. the present suit and also the earlier suit pending before the Ld. Civil Judge which application is still pending consideration.
The Ld. counsel for the Defendant no. 6 has raised objections to the adinterim relief granted to the plaintiff on various grounds which are as under:
A) That no prior notice has been given either to the defendant no. 2 L&DO; defendant no. 3 DDA; defendant no. 5 MCD; defendant no. 7 CPWD and the defendant nos. 8 and 9 i.e Commissioner of Police and SHO PS Chanakyapuri as required under the provisions of Code of Civil Procedure; Delhi Municipal Corporation Act, Delhi Development Act, 1957 and the Delhi Police Act;
B) That the plaintiff has not filed the adequate court fees as required under the law and hence the suit is barred by the provisions of Section 7 of the Suit Valuation Act and Section 8 of the Court Fees Act;
C) That there has been suppression of material facts regarding the filing of the earlier suit and the present suit filed by the present plaintiff is barred by the provisions of Order 2 Rule 2 CPC;
D) That the order of the Civil Judge has attained finality : 16 : and the plaintiff cannot file a subsequent suit to re agitate the aspects raised in the earlier petition wherein the relief has been denied to them;
E) That the act of the defendant no. 6 in felling and cutting of trees is in accordance with the due process of law since the defendant no. 6 has a valid permission from the competent authority and in case if the plaintiff is so aggrieved by the said permission/ approval the only remedy available to them is under Section 14 of the Preservation of Trees Act and this court will have no jurisdiction to look into the said aspect; F) That the defendant no. 6 has a valid right, title and interest over the land in question which has been validly allotted to them by following due process of law and the plaintiff would have no locus standi to either challenge the said allotment or to seek interim relief asked for by them.
G) That no injunction can be granted to the plaintiff as the suit itself is not maintainable and also since there is no prima facie case or balance of convenience in favour of the plaintiff and no irreparable loss is being caused to them.
: 17 : In support of his submissions the Ld. counsel for the defendant no. 6 has also placed his reliance on the following authorities which I have duly perused.
1. H.K. Bhalla vs. Union of India reported in 1997 (69) DLT 352.
2. Prinda Punchi (Smt.) & Anr. vs. Municipal Corporation of Delhi reported in 2005 (4) AD 639.
3. Mirajuddin vs. DDA reported in 2004 (109) DLT 26.
4. Ram Dulari vs. DDA reported in 1995 (2) DLT 59 :
1995 (34) DRJ 129.
5. Madan Lal Arora vs. Shiv Kumar reported in 2007 (5) AD (Delhi) 99.
6. Gurdwara Baba Zorawar Singh Vs. Piara reported in 2007 (141) DLT 228.
7. Asha Bajaj vs. Deputy Lal reported in 2001 (89) DLT
761.
8. Borosil Glass works vs. O.P. Batra reported in 1998 (72) DLT 7.
9. T.A. George & Anr. vs. DDA & Ors. reported in AIR 1995 Delhi 131.
: 18 :
10. Nagarao & Ors. vs. Nagpur Improvement Trust reported in AIR 2001 Bom. 402.
11. Hans Raj vs. J.K. Khatri & Anr. reported in AIR 1999 Delhi 346.
12. Commissioner of Central Excise vs. Anuj Vohra reported in 2003 (160) ELT 92.
13. Virumal Praveen Kumar vs. Gokal Chand Hari Chand reported in 2000 (87) DLT 327.
14. Malvika Madan Sehgal & Anr. vs. M.M. Sehgal reported in 65 (1997) DLT 381.
The Ld. counsel appearing on behalf of the plaintiff has also placed his reliance on the following judgments which have been considered by me:
1. Meena Rani vs. Ajaib Singh reported in 2003 (3) Civil Court Cases 20 (Para 3).
2. M/s. Bengal Waterproof Ltd. vs. M/s. Bombay Waterproof Mfg. Co. reported in AIR 1997 Supreme Court 1398.
3. Ashoka Builders & Promotors vs. Edward Keventer (Successors) P. Ltd. reported in 1994 (1) Civil Court : 19 : Cases 351 (Delhi).
4. State of Maharastra vs. M/s. National Construction Company, Bombay reported in AIR 1996 Supreme Court 236.
I have gone through the pleadings of the parties; the various documents pertaining to the allotment of land to the defendant no.6; the Revenue records placed before me by the plaintiff and the detailed written synopsis of arguments filed by the plaintiff and the defendant no.6. I have also given my consideration to the oral submissions made by the Ld. Counsel and have duly perused the Master Plan2001 & 2021 Zonal plan and the Survey Plan/ Lay out plan of the area. My Prima facie observations on the various grounds raised by the defendant no. 6/ applicant in the application under Order 39 Rule 4 CPC are as under: A. That no prior notice has been given either to the defendant no. 2 L&DO; defendant no. 3 DDA; defendant no. 5 MCD; defendant no. 7 CPWD and the defendant nos. 8 and 9 i.e Commissioner of Police and SHO PS Chanakyapuri as required under the provisions of Code of Civil Procedure; Delhi Municipal Corporation Act, Delhi Development Act, 1957 and the Delhi Police Act.
: 20 : It has been vehemently argued by the Ld. counsel for the defendant no. 6 that no prior notice under Section 80 of CPC, DMC Act and DD Act has been given by the plaintiff to the defendants prior to the filing of present suit which has been denied by the counsel for the plaintiff. I have gone through the pleadings and it is evident that in the replication to the written statement of defendant no. 1 and 2 the plaintiff has very specifically stated that the legal notice has been duly served on all the defendants as required under the law. In fact the defendant no. 3 DDA has not raised any objection this aspect regarding non service of the notice upon them as per the Section 53 B (1) of the DD Act in the written statement. Copy of the legal notice dated 19.3.2003 sent to the Union of India, L&DO, DDA. MCD and Delhi Police has been placed on record alongwith the AD cards as a proof of service. The DDA in its written statement has not raised any dispute regarding non service of the notice, therefore under these circumstances the defendant no. 6 cannot be allowed to raise this issue of non service of prior notice u/s. 53 B (1) of DD Act upon DDA. Even otherwise any dispute on the aspect of non service is a dispute of facts which can only be determined after parties have lead evidence on the same.
: 21 : Merely because an oral objection has been raised by one of the defendants now at this stage of arguments on application U/o 39 rule 1 and 2 will be no ground to dismiss the claim of the plaintiff at the preliminary stage.
B. That the plaintiff has not filed the adequate court fees as required under the law and hence the suit is barred by the provisions of Section 7 of the Suit Valuation Act and Section 8 of the Court Fees Act.
It is argued by the Ld. Counsel for the defendant no.6 that the plaintiff has not correctly valued the suit for purposes of court fee. I have gone through the pleadings and it is evident from paragraph 13 and 14 of the plaint that the plaintiff has valued the suit for pecuniary jurisdiction on the basis of the damages which they are claiming and the court fee has also been accordingly affixed. In so far as the relief no. (i) and (ii) are concerned a fixed court fee as required has been affixed and for the relief no. (iii) advalorem court fees is affixed. In respect of the additional relief claimed by the plaintiff after the amendment of suit, the plaintiff has also affixed additional court fee in respect of the relief no. (iv). Even otherwise the objection raised by the defendant no. 6 in : 22 : their written statement is vague and the defendant no. 6 has not specified as to how the court fees affixed by the plaintiff is inadequate or not proper. Whereas on the other hand the plaintiff in its pleadings in paragraph 13 and 14 of the plaint has specifically given the valuation both for the purposes of court fees and jurisdiction/ which court fees has also been affixed.
Even otherwise whether the court fee affixed is proper or not is a mixed question of fact and law on which a specific issue has already been framed. It is also a settled law that in case of deficiency of court fee an opportunity is required to be given to the plaintiff to make up the said deficiency, if any and under no circumstances an order of rejection of plaint can be passed without giving such an opportunity. Hence, I do not find any merit in the ground raised before me.
C. That there has been suppression of material facts regarding the filing of the earlier suit and the present suit filed by the present plaintiff is barred by the provisions of Order 2 Rule 2 CPC.
It is also argued by the counsel for the defendant no. 6 that firstly there has been a suppression of material facts : 23 : from this court regarding filing of the earlier suit for permanent injunction which is still pending before the Ld. Civil Judge and secondly that the present suit of the plaintiff is barred as per the provision of Order 2 Rule 2 CPC. The Ld. counsel for the plaintiff has on the other hand pointed out that there is no suppression as alleged since the fact regarding filing of the earlier suit for injunction before the Ld. Civil Judge has been very specifically mentioned in para 8 and 9 of the plant. He has also placed his reliance on para 12 of the earlier suit pending before the Ld. Civil Judge wherein the plaintiff has specifically contended that he would be raising his other claims later.
I have gone through the plaint and it is evident from paragraphs 8 and 9 of the same that the plaintiff has in para 8 specifically averred that on 5.11.2001 a civil suit for permanent injunction and mandatory injunction had been filed by the Gaddi Nashin, Abdul Malik of the Dargah alongwith the members of his family against the CSOI, DDA and L&DO from raising or permitting the raising of any construction at the Dargah place of Dargah Panch Peer, Ground Floor, Near Vinay Marg, Petrol Pump & Football Ground, Chanakyapuri, New Delhi.
Further, it is also evident from the pleadings that a : 24 : specific averment had been made in paragraph 12 of the earlier petition filed by the plaintiff Dargah for permanent injunction that the said suit was filed only in respect of the limited relief of injunction which may not be treated as a bar under order 2 Rule 2 for further specific relief which the plaintiff may claim after due notice to the defendants no. 1, 2 and 3. The relevant portion i.e paragraph 12 of the earlier suit filed by the plaintiff before the Civil Judge which finds a mention in the pleadings of the plaintiff, is as under:
".... The suit filed is limited to relief of injunction and may not be treated as a bar under Order 2 Rule 2 CPC for further specific which the plaintiffs claim after due notice to the defendants no. 1, 2 and 3 as required by law or for invoking the jurisdiction of the Hon'ble High Court of Delhi at New Delhi for a writ jurisdiction as the present action of Defendants is without service of prior intimation on the Plaintiff's are giving them with any prior show cause notices as required by law under the Delhi Development Act, New Delhi, Municipal Council Act and : 25 : Municipal Corporation of Delhi Act as well as Delhi Police Act.
It is evident from the above that the plaintiff did not relinquish any portion of his claim in the earlier suit filed by him for permanent injunction rather on the contrary they reserved their rights to claim the other reliefs after giving a prior notice to the government as required under law and limited their claim in the earlier suit only to the relief of permanent injunction before the civil court. In this regard the law laid down in the judgments in the case of Meena Rani vs. Ajaib Singh (Supra) and in the case of Ashoka Builders & Promotors vs. Edward and Keventer (Successors) P. Ltd. (Supra) is very clear. Once the suit for permanent injunction has been filed only on a limited aspect wherein the plaintiff has specifically reserved his right to file a separate suit in respect of his other claims after due notice to government as required under law, then there will not exit any bar to the subsequent suit as in the present case. Therefore, under these circumstances primafacie there is no suppression of material facts regarding the earlier litigation since the fact has been specifically pleaded in paragraphs 9 and 10 of the plaint and also the provisions of Order 2 Rule 2 CPC apparently be not : 26 : applicable.
D. That the order of the Civil Judge has attained finality and the plaintiff cannot file a subsequent suit to reagitate the aspects raised in the earlier petition wherein the relief has been denied to them.
It is also argued by the Ld. counsel appearing for the defendant no. 6 that the order of the Ld. Civil Judge has attained finality and would operate as a rejudicata. In this regard the Ld. counsel for the defendant no.6, has argued that in the suit before the Ld. Civil Judge for permanent injunction which is still subjudice the order passed by the Ld. court declining the interim relief to the plaintiff on the ground that they have not been able to place any valid documentary records in respect of their title has now become final and cannot be reagitated. The ld. counsel for the plaintiff has on the other hand argued that any order passed on an application under Order 39 Rule 1 and 2 CPC does not come in the way of seeking a fresh order of injunction on a fresh cause of action and is not barred by the provisions of resjudicata. It is an admitted case that the initial suit for permanent injunction filed by the plaintiff is still pending before the court of Civil : 27 : Judge where the application U/o 39 rule 1 and 2 is yet to be disposed off and the order of the Ld. Civil Judge declining to grant relief was an order at the initial stage where the plaintiff had pressed for the grant of an adinterim injunction. That order is reproduced as under :
12.11.2001 Present: Counsel Sh. Deepak Dewan, Advocate for plaintiff.
SI Satish Malik from PS Chanakya Puri.
JLO for DDA Counsel for defendant no.4 Counsel for defendant no.2 Documents filed by plaintiff.
W.S. Filed by defendant no.4.
Copy given. In Jamabandi filed by the plaintiff government is owner of property and DDA is in possession of the same. As per documents filed by the defendant o.4 land and present, stands allotted to defendant no.4. Plaintiff has not filed any document to show his right title over the land in dispute. No ground for adinterim injunction. To come up for WS/reply of defendants on : 28 : 22.11.2001.
Sd/"
It is also not disputed that an application has been filed before the Ld. District Judge, Delhi for consolidation of both the cases i.e. the initial suit for permanent injunction and the present suit which application for consolidation is still pending disposal before the Ld. District Judge, Delhi. It is also admitted that the suit filed by the plaintiff is still pending before the Ld. Civil Judge and there has been no final disposal so much so that even the application U/o 39 rule 1 and 2 has not been disposed off, therefore under these circumstances the order of the Ld. Civil Judge refusing the grant of adinterim injunction would not act as resjudicata. Even otherwise the subsequent application is in respect of a fresh cause of action which occurred in the year 2008. Admittedly the cause of action in the earlier suit had when the boundary wall was being constructed by the defendant no. 6 on the disputed land and one Abdul Wahid the resident of the Dargah was stated to have been abducted by the defendant therein on which the plaintiff only sought a limited relief of permanent injunction. Now since the allotment of the land is under challenge in the present suit where the plaintiff is asking for the cancellation : 29 : of the documents therefore the subsequent act of the defendant no. 6 in felling/ cutting down of trees standing on the land whose allotment is under challenge before this court, gives rise to a fresh cause of action having subsequently arisen and any observation made by the Ld. Civil Judge in the suit for injunction declining the adinterim relief would not come in the way of this court as resjudicate. E. That the act of the defendant no. 6 in felling and cutting of trees is in accordance with the due process of law since the defendant no. 6 has a valid permission from the competent authority and in case if the plaintiff is so aggrieved by the said permission/ approval the only remedy available to them is under Section 14 of the Preservation of Trees Act and this court will have no jurisdiction to look into the said aspect It has been argued by the learned counsel for the defendant no.6 that there is an exemption vide notification dated 22.10.2007 regarding felling of 185 trees on the land in question and a valid permission has been granted by the competent authority i.e Dy. Conservator Forest pursuant to which only the trees have been proposed to be felled. On the other hand the Ld. counsel appearing on behalf of the plaintiff : 30 : has argued that initially when the plaintiffs had approached this court in the application under Order 39 Rule 1 and 2 CPC they were not aware that any exemption or permission which had been granted to the defendant no. 3 for felling/ cutting down the trees on the property in question and it was only when the defendant no. 6 filed the present application under Order 39 rule 4 CPC and also their reply to the application under Order 39 Rule 1 and 2 CPC that they came to know about the said exemption and approval which the plaintiff is now challenging. It is also argued that the trees standing on the land are the properties of the Dargah which were planted by the Gaddi Nassins of the Dargah for greenry purposes. According to the Ld. counsel for the plaintiff that the permission has been obtained by the defendant no. 6 from the competent authority by suppressing certain material facts and also by furnishing incorrect and misleading information. It is also argued that the exemption and permission so granted is not in accordance with law by following the due procedure as prescribed under Section 9 of the Preservation of Trees Act and hence the same is liable to be set aside.
The Ld. counsel appearing on behalf of the defendant no. 6 has advanced two fold arguments. Firstly, that this court will have no jurisdiction to examine the aspect : 31 : of the legality or illegality of the permission/ approval so granted by the competent authority in view of the provisions of Section 14 of the Preservation of Trees Act which aspect can only be agitated before a separate authority so specified under the Act. Secondly that exemption/ permission so granted by the competent authority under the Preservation of Trees Act has been validly granted after following due process of law and that nothing has been concealed or suppressed as alleged.
I have considered the submissions made before me. It is evident from the material placed on the judicial file and also produced before this court by the Conservator of Forests, NCT of Delhi that the exemption / permission so granted was pursuant to the request made by the Union of India on 13.7.2007. It is also apparent from the record that on 23.7.2007 Sh. J.K. Dadoo, Secretary (Environment) had communicated to the Joint Secretary, Government of India, Ministry of Personnel and Training of having got the matter examined through the Conservator of Forest and he had asked the Joint Secretary, Government of Ministry of Personnel and Training to provide him with the following information:
a. Location of the plan on the allottes land : 32 : to ascertain the number of trees requiring permission for felling;
b. Details of compensatory plantation;
c. NOC of L&DO, Ministry of Urban
Development as required in the allotment order dated 13.1.2006 (Sl. No. 2 (viii) and 2
(x)).
d. A certificate to the effect that the piece of land was free from any litigation.
It is also evident from the records of the Conservator of Forest produced before this Court that on the basis of the information thereafter provided to them by the defendant no. 6 the case was processed and the notification dated 22.10.2007 was issued and the permission was granted for removing of 185 trees on 27.2.2008. Copy of the said exemption and permission has been placed on the judicial record which the plaintiff is now seeking to challenge after amending the plaint.
It is evident that the Deputy Conservator (Forest) Sh. R.S. Sinha an authority created under Section 2 of the Preservation of Trees Act had appeared before this court on 2.5.2008 and the Conservator (Forest) Sh. D.M. Shukla had : 33 : also appeared on 6.5.2008 and informed this court that the competent authority/ NCT of Delhi, Department of Environment was never informed about the present pending litigation regarding the land allotted by the Ministry of Urban Development to the CSOI and rather on the contrary the General Manager, CSOI i.e defendant no.6 had written to the Deputy Conservator (Forest) on 25.7.2007 stating that the land was free from all litigations. Relevant extract of the said communication is as under:
".... As already informed, the land in question has been allotted by the Ministry of Urban Development and it free from litigation. Total area of 4.23 acres has been demarcated and boundary wall has been constructed by NBCC. There is a Mazaar on the periphery which has been excluded and lies outside the boundary wall. Custodians of the Mazaar had filed a Civil Suit claiming ownership and tried to procure stay order from the Court, which has been refused by the Court concerned. This is further clarified that there is no litigation regarding the land allotted to CSOI by the Ministry of Urban Development ........
This court has been specifically informed by the : 34 : counsel appearing on behalf of the Conservator Forest, NCT of Delhi, that the Lt. Governor who is the competent authority under the Act had granted the exemption on 22.10.2007 and the subsequent approval dated 27.2.2008 on the basis of the repeated information furnished by the CSOI i.e the defendant no. 6 firstly on 25.7.2007 thereafter and 25.2.2008 alongwith the supporting affidavit that there was no litigation pending in any court and had the NCT of Delhi/ competent authority been aware of the present litigation things might have been otherwise.
It is further evident from the documents placed on record that as per the terms and condition of allotment of the land, the defendant no. 6 CSOI was also required to submit a no objection certificate from the Airport Authority; CE (E) NDMC; CE (C) NDMC; Tree Officer for cutting of trees alongwith the intimation of commencement of work mentioned at serial no. 3 (regarding erection of building as per bylaws). On the date when the cause of action arose i.e on 16.3.2008 there was no such objection and the the said No Objection certificate was issued by the Dy. L&DO only on 24.4.2008 while the application under Order 39 Rule 1 and 2 CPC and subsequent application under Order 39 Rule 4 CPC filed by the defendant no. 6 were being argued and were : 35 : pending disposal before this Court. This permission/ approval which has been given by the L&DO i.e defendant no. 2 to the defendant no. 6 during the pendency of the present application only after the issue regarding the acts of defendant no. 6 of cutting and felling of trees came under judicial scrutiny before this court.
It is further evident from the provisions of the Preservation of Trees Act and it is apparent that the Act does not specifically bar the jurisdiction of the civil court and only an alternative forum is created under the Act for challenging the order of the Competent Authority passed under Section 9,10 & 11 of the Act. Therefore once the issues relating to the jurisdiction of the competent authority, grant of exemption and of procedure adopted by the authority while passing the order have been raised then under those circumstances there is no bar to the jurisdiction of the civil court for entertaining such a plea and the extent to which the Civil Court can thereafter exercise its jurisdiction becomes a mixed question of both and fact which cannot be decided at this stage. Even otherwise in the present case the exemption notification dated 22.10.2007 is under the provisions of Section 29 of the Act which does not fall within the scope and ambit of Section 14 of the Preservation of Trees Act since the authority : 36 : created under Section 14 of the Act has a limited jurisdiction of dealing with challenge to orders passed under Section 9,10 and 11 of the Act. Therefore, there is no legislative intention in the form of express indication of the statutory exclusion of the jurisdiction of civil court and primafacie it is only a Civil Court who would have the jurisdiction and competence to examine the aspect of legality of the said notification granting exception issued under the provisions of Section 29 of the Prevention of Trees Act.
Coming to the second limb of arguments advanced by the learned counsel for the defendant no.6 that the exemption / permission has been granted to them after following due process of law, it is evident that Government of NCT of Delhi, Department of Forest who has now been allowed to be brought on record as defendants No.9 after an amendment was duly heard after its officers i.e the Dy. Conservator Forest and the Conservator Forest had been summoned by this Court alongwith their records during the hearing which records revealed that the General Manager of the CSOI i.e defendant no.6 had furnished incorrect information to the Dy. Conservator Forest in respect of the specific query sought to them by the concerned officer with regard to the pending litigation vide their communication : 37 : dated 25.7.2007 denying that there was any litigation regarding the land allotted to CSOI by Urban Development Ministry. The intent and object of the Preservation of Trees Act is to ensure the protection and preservation to the environment and maintenance of the green. The Court and also the Competent Authority created under the Act are under an obligation to ensure that no one is allowed to act in a manner which is detrimental to the environment, society and to the objectives enshrined under this special legislation i.e Preservation of Trees Act. Primafacie the exemption has been granted by the Competent Authority and the Lt. Governor, Delhi on the basis of incorrect information supplied by the defendant no. 6 regarding the pendency of the present litigation in which there is a challenge to the allotment made by the defendant no.2 to the defendant no.6 and a prayer has been made for cancellation of the same. Misleading information has been given by the defendant no.6 to the said authority on 25.7.2007 and subsequently again on 25.2.2008 on affidavit on the basis of which the Govt. of NCT of Delhi i.e the newly added defendant No.9 who is yet to file their Written Statement appears to have been induced into granting such an exemption and the subsequent permission. Therefore, I do not find any merit in the contentions raised by the : 38 : defendant No.6 in their application under Order 39 Rule 4 CPC that the permission and exemption was given after following due process of law rather on the contrary it was primafacie given on the basis of wrong and misleading information provided to the competent authority by the defendant no. 6 on affidavit.
F. That the defendant no. 6 has a valid right, title and interest over the land in question which has been validly allotted to them by following due process of law and the plaintiff would have no locus standi to either challenge the said allotment or to seek interim relief asked for by them.
It is also argued by the counsel of the defendant no. 6 that they had have a valid right, title and interest over the land in question being the valid allottees of the same. It is contended that the plaintiff himself is a trespasser/ encroacher and has no locus standi to approach this court, much less seek the relief as sought for in the plaint. On the other hand it is argued by the Ld. Counsel for the plaintiff that firstly the plaintiff which is a Dargah in the area is claiming their right over 3 bighas 14 biswas out of the land allotted to the : 39 : defendant no. 6 which is stated to be in possession of the Dargah since times immemorial a fact which would be evident from the various revenue documents including the site plan, Fard Jamabandi of the year 190809. Secondly that the allotment has been made illegally and without following due process of law.
Coming to the argument raised by the counsel for respondent no.6 regarding the CSOI being legal allottee of the land in dispute. I have gone through the master Plan, Zonal Plan, Layout Plan and Survey Report on which documents there is no dispute and all the parties are admitting the same. It is necessary to highlight that in the Master Plan 2021 the land use under the Head Recreational the land use for Category P1 is for regional park; for Category P2 is for City park, District park, Community center and for Category P3 is for historical monuments. Perusal of the Master Plan for Delhi 2021 shows that the site in question falls under P2 Category, which land use is shown to be Recreational meant for City Park, District Park, Community Center.
Similarly in the Zonal Plan land use has been shown as recreation and includes the Children park, District park, Play ground, Stadium, Sports complex, Regional park, Historical monuments, Neighbourhood Play area/ green space : 40 : and divisional sports center with a permissive user in the sub zone as Recreational Club. In the General lay out plan/ survey plan initially the area in question was shown as a green area but I am informed that as per the notification/ amendment the land has been shown to be allotted to CSOI for Recreational Club.
Perusal of the letter of allotment bearing No. LII 17 (45)/98/775 dated 3.12.1998 of the defendant no. 2 L&DO allotting the land measuring 3.52 acres to the defendant no. 6 shows that it has been given to the defendant no. 6 for setting up of a Club in the Area. By way of the said allotment the defendant no. 6 has been allowed to construct a building and the allottee has been asked to pay the cost of land @ Rs.80/ lakh per acres for the land on which the club building be constructed and 2 ½ % Ground Rent per annum thereon and further the allottee will pay provisionally a license fee @ Rs.5,000/ per acres per annum for the land maintained as "green". It is also clarified that the allottee would construct the building on the area measuring 0.352 acres i.e. 1424.50 Sq. meters and the remaining area is required to be maintained as green.
I have gone through the annexure 6/H which is the proposed building plan of the club which shows that there is a : 41 : proposal of constructing Squash Courts, swimming pools alongwith concrete building for the club. Though in the plan of the proposed building placed before this court by the defendant no. 6 which is Annexure 6/H it has been mentioned that 20 trees are required to be felled in the area yet it is now evident from the exemption given by the NCT of Delhi and the permission of the competent authority that infact there are 185 trees existing in the area for which the exemption has been taken for felling.
The issues involved before this court are two fold. Firstly whether a part of the land in question measuring 3 bighas 14 biswas belonging to the plaintiff Dargah or not and secondly whether the allotment of the land in question has been legally and validly made by following due process of law.
In so far as the first aspect is concerned the plaintiff has placed before this court the certified copy of the various revenue documents to show his primafacie right over the land in question. At this stage it is not possible for this court to comment on the correctness or falsity of the said revenue records whose certified copies have been placed before this court since the same is a disputed question of fact and a specific issue has already been framed in this regard.
: 42 : However, in so far as the Second aspect is concerned, in addition to and without derogation to the first aspect even if presuming that the plaintiff has not been able to show his right over the 3 bighas 14 biswas of the land being claimed by it yet it is not disputed that the plaintiff Dargah is in existence at the site where the Khadims and Mujawars reside. Therefore, being the users of the land in question which user in the Master Plan and Zonal Plan has been shown for District Park the validity of the allotment can always be challenged by them in the court of law in their capacity as the beneficiaries/ stake holders of the land in question.
Now examining the aspect of legality of the allotment made to the defendant no. 6 firstly both the defendant no. 1 and the defendant no 3 admit that the land in question had been handed over to the DDA in the year 1974 by way of Notification no. 1810 dated 12.7.1974 as site no. 46 measuring approximately 18.0 acres for maintenance as green. During the course of arguments a specific query had been put by this court to the officers and the counsels appearing on behalf of the defendant no. 2 and 3 as to whether any subsequent notification had been issued after the year 1974 superseeding the earlier notification no. 1810 and replacing the land in favour of defendant no. 2 to which both : 43 : the counsels have on specific instructions from their officers stated that there is no such notification. It is stated that the land had been taken back by the defendant no. 2 from the defendant no. 3 i.e. DDA pursuant to an office communication.
Ld. counsel appearing on behalf of the DDA Sh. K.D. Sharma has vehemently argued that the land in question has not been taken back in accordance with the statutory procedure established by law and hence is deemed to be continuing under the control and maintenance of the DDA. He has pointed out that the land in question being a Nazul land once being placed under the disposal of the DDA can only be taken back from the DDA by way of subsequent notification as per the provisions of Section 22 (4) of the Delhi Development Act which notification has not been issued till date pursuant to any agreement as required under the law.
Ld. counsel appearing on behalf of the defendant no. 2 has argued that land in question belong to L&DO which was given to the DDA only for the purposes of maintaining as green and no subsequent notification is required. It is submitted that even otherwise it was for the defendant no. 3 DDA to have issued a notification in the official gazette and : 44 : not having issued the same they cannot now be allowed to take a contrary stand before this court.
I have considered the submissions made by the parties and also the provisions of Section 22 of the Delhi Development Act are as under:
Section 22 (1) The Central Government made by way of notification in the official gazette and upon such terms and conditions as may be agreed upon between that Government and the Authority, place at the disposal of the Authority all or any developed and undeveloped lands in Delhi vested in the Union (known and hereinafter referred to be "nazul lands") for the purpose of development in accordance with the provisions of this Act.
It is an admitted case that the land in question had been placed at the disposal of the DDA for maintaining as green was by virtue of the Notification no. 1810 of the year 1974 so issued under the provisions Section 22 (1) of the DD Act. That being so the said land so placed at the disposal of : 45 : the authority under SubSection (1) can only be replaced upon such terms and conditions as agreed upon between the government and the authority by way of a subsequent notification in the official gazette as provided under Clause 4 of Section 22 of Delhi Development Act which provides that:
........... If any nazul land placed at the disposal of the Authority under Sub Section (1) is required to any time thereafter by the Central Government, the Authority shall, by notification in the Official Gazette, replace it at the disposal of that government upon such terms and conditions as may be agreed upon between that Government and the Authority..............
It is also an admitted case between the parties that there is no subsequent notification u/s. 22 (4) of the DD Act replacing the land with the government nor the defendants no. 2 and 3 have placed before this court any terms and conditions agreed upon between them for replacing the land at the disposal of the defendant no. 2. This being the case the procedure as prescribed under the Delhi Development Act : 46 : being of a mandatory nature not having been followed by the defendants no. 2 and 3, I hold that the subsequent allotment of the said land to the defendant no. 6 by the defendant no. 2 is primafacie not in accordance with the procedure prescribed under the Delhi Development Act.
Secondly it is not disputed that the land in question is falling under the category P2 in the Master plan which is for the purposes of district park. Even in the approved Zonal Plan placed before this court the land use is shown to be Recreational under the category of a district park. This shows that the primary prescribed land use is for a District Park intended for public under the head Recreational. It is evident from the records of the defendant no. 2 pertaining to the allotment of the land that as per note sheet dated 5.2.2001 copy of which is placed on the judicial file that on 26.3.2000 the Urban Development Minister had alongwith the Director (Civil) CPWD and the senior officers, Chief Architect CPWD, L&O, EO, L&DO visited the site during which the Minster had inquired as to how the the allotment was made in favour of the CSOI in the district park / open space area. It was indicated by him that the allotment of such clubs can be made only in the area specifically earmarked as 'Club' in the layout plan and the allotment made to the CSOI perhaps does : 47 : not seem to be in order. The Urban Development Minister had further desired that the vacant/ ground area between Vinay Marg and Safdarjung airport be surveyed and a detailed report submitted to him within 23 days which directions were given by him to the DG, CPWD at the spot.
Since the record produced before the court did not reflect any survey report as desired by the Minister hence, directions were issued by this court to submit the same which has now been placed before this court. The said Survey plan shows the area under dispute as green. I am informed by the counsel for the defendant no. 2 that as per the instructions received by him from the NDMC, that the layout plan has been modified and the area has now been shown as allotted to CSOI as Club by the NDMC vide modification/ order dated 28.2.2007.
It is a settled principle of law that any amendment or modifications in the layout plan which is in violation of the Master Plan or Zonal Plan of the area is perse illegal. One of the main intent of the Master Plan 2001 was to maintain the ecological balance. Similarly Master Plan 2021 envisages that a large no. of organized play fields and other ecological wealth could be developed/ saved for appropriate environment and healthy living. Both in Master Plan 2001 : 48 : and Master Plan 2021 the area in question is shown as a District Park. The intention of the framers of the Master Plan 2001 and 2021 was to maintain the area in question as green and to allow its maximum use by the general public i.e. people/ residents of the area as a district park under the Category P2.
By allotting the said land to a select privileged group of persons the land in question looses its character of public use since it tends to limit and restrict the target group/ beneficiaries which is impermissible in law. It is a settled law that the land use conversion under the permissive category can be allowed subject to the condition that there is no change in the ultimate users/ beneficiaries/ stake holders which in case of P2 Category under the head of District Park would be the general public including the local residents (Clause 13.8 of the Master Plan 2021 according to which 5000 Sq. meters land can be alloted for a Recreational Club for every 5 lac population). By virtue of its allotment to a select privileged group and thereby limiting and restricting the area of use to a limited category of beneficiaries, the allotment in question primafacie is bad in law since it frustrates the objectives of the Master Plan which authorizes the use of the land as a District : 49 : Park whose stake holders are the residents of the area and general public.
Thirdly, it is evident from the constitution of the defendant no. 6 and its aims and objectives of the CSOI that the membership of the association is confined to the serving and retired officers of the grade of Deputy Secretary to the Government of India and above from All India Services and Group 'A' Officers of equivalent status working under the Central Government and those on deputation to PSUs and autonomous institutions located in Delhi subject to the approval of the governing Council/ Executive Committee which in itself shows that the beneficiaries are a select group and limited in number and the allotment of the land is for a club whose benefit does not reach out to general public or the residents of the area. Therefore the mere use of the term Recreational Club as provided under Clause 13.8 of the Master Plan 2021 by the CSOI will not perse have the effect of bringing the CSOI Club within the purview of Clause 13.8 of the Master Plan 2021 so as to allow the conversion and permissive use of land under the category 9.6 since as per the provisions of Clause 13.8 of the Master Plan 2021 where Planning Norms and Standards for SocioCultural facilities provide that for every 5 lac population plot area is required : 50 : to be 5000 sqm. per unit i.e. approximately 1.25 acres. Hence, under no circumstances can the use of the land be restricted even if the conversion is allowed?
Fourthly the defendants have failed to place before this court permission of land use change which is mandatory without which no conversion or change of user is permissible.
Lastly, there are repeated observations by the Hon'ble Apex Court and by the various High Courts including the Delhi High Court impressing upon the need to maintain the green areas and parks in all the towns and cities to protect environment and ecology. Any concretization in the area under the garb of construction of recreational club for a limited class of persons would perse be violative of the said directions of the Apex Court and the intent of the Master plan and Zonal plan.
Harmonization of the issue of ecology and development project is the order of the day and need of the hour as observed by the Hon'ble Apex Court in the case of Goa Foundation, Goa vs. Diksha Holding Pvt. Ltd. reported in AIR 2001 SC 184. Therefore, it becomes the duty of the court to ensure that all efforts are made to reconcile and harmonize the ecology with development so as to ensure that the environment is not adversely affected. In the case of : 51 : M.C. Mehta vs. Union of India in IA No. 34 Writ Petition no. 4677/1986 the Hon'ble Supreme Court has observed that the permissive use of the parks being recreational under the Master Plan cannot be permitted for any other use. Recently the Delhi High Court has in the case of Green Park Extension RWA vs. MCD in writ petition (Civil) No. 1386/06 decided on 22.4.2008 by relying upon the directions of the Hon'ble Supreme Court in the case of M.C. Mehta vs. Union of India (Supra) directed the demolition of Election Commission Office which had come up in the green area/ park.
The Ld. counsel appearing on behalf of the defendant no.6 has also argued that the plaintiff has no locus standi to seek the relief of injunction as he is himself an encroacher. It is evident from the pleadings that the plaintiff is staking his claim to the land in question on the basis of the revenue documents i.e Fard Jamabandi which is of the year 190809 certified copy of which is present on record. There is also no dispute on the aspect that the Dargah has been in existence at the site since long and the dispute is only with regard to the extend of area which is in occupation of the plaintiff Dargah. According to the defendants the plaintiffs : 52 : have encroached the additional land around the Dargah which land already stood acquired which aspect has been denied and therefore is a disputed question of fact and a triable issue.
It is also not disputed that the allotment of the land to the defendant no. 6 was made on "as is where is" basis as evident from from the allotment record placed before this court by the defendant no.2 and it was only later that certain constructions made by the plaintiff Dargah were demolished and a boundary wall constructed by the defendant no.6 when the plaintiff rushed to the court and filed the earlier suit for injunction. Therefore under these circumstances at this stage of the disposal of the application U/o 39 rule 1 and 2 CPC and application under Order 39 Rule 4 CPC when this court is confronted with two sets of documents it would be improper for this court to jump to any conclusion regarding the rights and liabilities of the litigating parties. However in so far as the aspect of locus standi and maintainability of the suit are concerned it is prima facie evident that the plaintiff is claiming its right over the land in question as a Dargah covered under a Wakf on basis of revenue documents. Even otherwise the right of the plaintiff to challenge the legality of the allotment of the land in question can not be taken away even if the issue of locus standi is ultimately decided against : 53 : the plaintiff by virtue of the fact that the plaintiff Dargah exists at the site and has a locus to challenge the legality of the allotment being violation of the Master Plan and Zonal Plan. Therefore, the plaintiff primafacie has the locus standi to file the present suit be it in its individual /independent capacity as the alleged owner or in alternative and without derogation to the first in its capacity as neighbour/ user/ beneficiary of the land. Further, since the challenge has been made to the legality of the allotment of land, therefore under these circumstances question of locus standi at this stage would otherwise become secondary.
In view of the aforesaid the observations made by the Urban Development Minister on 26.3.2000 during his site visit that the allotment of the land to the defendant no. 6 by the defendant no.2 does not seem to be in order, appears to be correct and the said allotment primafacie made in violation of the Master Plan and Zonal Development Plan and also in violation of the established rules of law and procedure. G. That no injunction can be granted to the plaintiff as the suit itself is not maintainable and also since there is no prima facie case or balance of convenience in favour of the plaintiff and no ir repairable loss is being caused to them.
: 54 : It is a settled law that injunction is a matter of equitable jurisdiction for which plaintiff has to show a breach of law of procedural matter warranting interference. There has to be a violation of a right which violation has to be by the defendant pursuant to which there should be inconvenience caused to the plaintiff and injury inflicted to his legal right. The principle enunciated in the case of Straight Vs. Burn reported in LR 5 Cha. Ap 165 is that the first requisite to an injunction is a material injury to a clear legal right.
In order to seek the relief of injunction it is necessary for the plaintiff to show the existence of a primafacie case, balance of convenience and that an irreparable loss would be caused in case if the relief is not granted.
It is a settled law that the proprietary of granting or refusing injunction depends upon the facts of each case and general principles of equity as related to injunctions is one of the fundamental prerogative of the courts and injunction should not be made an instrument of oppression and injury and should be refused when good conscious does not require. Also, in a case where the grant of injunction is oppressive or contrary to justice or where it promotes rather than prevent fraud and injustice should be refused. However, in a case : 55 : where the court is assured that the operative effect of ad interim would be wholly without injustice or oppressive to either parties and there is a breach of a specific or implied obligation then this court has sufficient powers to pass any interlocutory orders where it appears just or convenient.
In the present case the plaintiff is seeking cancellation of allotment of the 3.52 acres land made to the defendant no. 6 by the defendant no. 2 as being illegal. Admittedly the pure questions of law need not be specifically pleaded. As already discussed herein above the allotment of the land made to the defendant no. 6 by the defendant no. 2 appears to be primafacie irregular and illegal for the following reasons:
1. That there is no notification under Section 22 (4) of the DD Act replacing the land with the defendant no. 2 pursuant to an agreement after the earlier notification under Section 22 (1) of the Delhi Development Act of the year 1974.
2. It is evident from the constitution of the defendant no. 6 and their aims and objectives that the use of the land in question has been restricted to a select/ privileged group.
: 56 :
3. That the use of land being for a District Park as per the Master Plan and the Zonal Development Plan, it cannot be allowed an exclusive use by select privileged group under the garb of use of term Recreational Club since beneficiaries of the same are intended to be general public/ resident of the area.
4. That the permission of land use change which is mandatory prior to modification of the layout plant has not been placed on record.
5. That the land use which is governed by Master Plan 2021 and the Zonal Development Plan cannot be allowed for any other purpose except what is permitted which is for a district park under the P2 Category or for purposes of a Recreational Club and as per the planning norms and standards prescribed in case of 5 lacs population per unit to the plat area is required to be 5000 sq. meter (approximately 1.25 acres) according to Clause 13.8 of Master Plan 2021 under the head Socio cultural facilities. In the present case 14,161 Sq. meters have been allotted for exclusive use of limited category of persons.
We in this nation are all subservient to the Rule of : 57 : Law and the law of this land would apply to all alike howsoever high or powerful a person/ group may be. The courts of India are both courts of law and equity and under no circumstances this court will allow a powerful/ privileged group to invade any rights of the general public. In a case where the legal requirement is to allow the use of land by the general public/ residents of an area for a particular purpose which in the present case is for a District Park with a permissive conversion to a Recreational Club for every 5 lac population (Clause 13.8 of the Master Plan 2021), then this court has sufficient powers to pass any interlocutory orders to grant adinterim injunction against doing of anything which is contrary to the permissive user. No group how so ever privileged/ powerful can be allowed and exclusive land use more so when the user as envisaged and the ultimate beneficiary/ stake holders in the said land is general public.
The club which the defendant no. 6 proposes to construct at the site is for a limited/ exclusive use of its members seems to have been deliberately and deceptively shown as a recreational club only to bring the same within the ambit of the term Recreational Club so used in the Master Plan in order to justify and legalize the allotment so made by bringing it within the category of permissive user and it : 58 : appears that the objections so raised by the Urban Development Minister during his site visit on 26.3.2000 was not without any basis. Use of the land has to be by the public whether as a District Park or as a Recreational Club (as provided under Section 13.8 of the Master Plan 2021) for every 5 lac population.
Hence, in view of the aforesaid observations and the circumstances of the present case where the allotment of the land made to the defendant no. 6 is under cloud and is primafacie irregular and illegal, the scale of equity tilts in favour of granting adinterim injunction rather than refusing the same, more so in view of the fact that the environmental loss caused in terms of felling/ cutting of 70100 years old trees on nongranting of injunction which loss would be irreparable. The balance of convenience lies in favour of the stake holders/ beneficiaries/ users of the land as prescribed in the Master Plan and Zonal Development Plan and not in favour of the allottees i.e. defendant no. 6 whose allotment is under challenge and in case if the injunction is so refused, loss in terms of environment and financial wastage is liable to be irreparable. This court has sufficient jurisdiction to pass any interlocutory orders specifically prayed for, or even if not specifically prayed as may be just and convenient in order to : 59 : preserve and maintain the status of the land/ property in dispute till the final adjudication of the issues involved in the present case. Hence, I accordingly confirm the interim orders dated 3.4.2008 and 6.5.2008 and the defendant no. 6 i.e. The Civil Services Officers Institute is restrained from cutting down/ pruning any trees in the disputed property which order is directed to be implemented through defendants no. 8 and 9 and I also restrain the defendant no. 6 from carrying out any construction at the spot till the disposal of the suit.
The application under Order 39 Rule 1 and 2 CPC filed by the plaintiff is accordingly disposed off and the application under Order 39 Rule 4 CPC is hereby dismissed. However, keeping in view the sensitivity of the issues involved it is hereby directed that the trial of the suit shall be expedited and no request for adjournment shall be entertained on behalf of any parties. After the newly impleaded defendant no. 9 joins the trial of the case and the issues are accordingly modified, all the parties shall be given only three effective opportunities to complete their evidence. Case be listed for 6.8.2008 for service/ appearance of the newly impleaded defendant no. 9 and its written statement if any.
Announced in the open court (Dr. KAMINI LAU)
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Dated: 2.6.2008 Addl. District Judge: Delhi
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Dargah Panch Peer vs. UOI
Suit No. 595/2004
2.6.2008
Present: Sh. K.A. Dewan, advocate for the plaintiff.
None for defendant no. 1, 2 and 7.
Sh. K.D. Sharma, advocate for the DDA.
Sh. Sanjay Gupta, JLO for MCD.
Sh. Sawinder Singh Advocate for the defendant no.
6. None for other defendants.
Vide my separate detailed order dictated and announced in the open court but not yet typed, the application filed by the plaintiff under Order 6 Rule 17 CPC is hereby allowed on cost of Rs.2,000/ to be deposited in DLSA.
Further vide another separate order dictated and announced in the open court, the application under Order 39 Rule 1 and 2 CPC filed by the plaintiff is accordingly disposed off and the application under Order 39 Rule 4 CPC is hereby dismissed. However, keeping in view the sensitivity of the issues involved it is hereby directed that the trial of the suit shall be expedited and no request for adjournment on behalf of any of the parties shall be entertained. After the newly impleaded defendant no. 9 joins the trial of the case : 62 : and the issues are accordingly modified, all the parties shall be given only three effective opportunities to complete their evidence.
Case be listed for 6.8.2008 for service/ appearance of the newly impleaded defendant no. 9 and its written statement if any.
ADJ: DELHI 2.6.2008 : 63 :