Jasvinder Singh v. DDA and Ors

JUDGMENT V.K.SHALI, J. *

¶1This is a Regular Second Appeal filed by the appellant against the judgment dated 5^ September, 2008 passed by Shri O. P. Gupta, Additional District Judge, Tis Hazari Courts, Delhi. By virtue of the impugned judgment and decree the learned Additional District Judge has dismissed the appeal of the appellant and upheld the findings of the learned Trial Court to the effect that the CivilCourt does not have the jurisdiction to entertain the suit for declaration of the ownership rights and injunction of the appellant.

¶2Briefly stated the facts of the case are that the appellant had filed a suit against the defendants alleging therein that he is the owner of the Janta Flat No. 42, Pocket B-9, Sector 3, Rohini, Delhi-110085. It was alleged by the appellant that a declaration be issued that the aforesaid flat is not covered by the Public Page1 of8 Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. s Premises (Eviction of Unauthorised Occupants) Act, 1971 and the proceedings which are purported to have been initiated against the flat in question are bad in law and void. The appellant had also sought an injunction prohibiting and restraining the respondent from evicting and dispossessing him from the said flat in any manner whatsoever. The appellant had also stated that the aforesaid flat was allotted to respondent no. 3 by the respondent no. 1 and the possession of the same was handed over on 15^ October, 1986. The respondent No. 3 sold the said flat to a number of persons and ultimately it came to be sold to one Smt. Tarawanti wife of Shri Jetha Nand, resident of D-510, Dilshad Garden, New Delhi on 25^ February, 1997 who in turn sold the same to the appellant vide power of attorney and agreement to sell etc. dated 15^ February, 1997. It is further allegedthat the respondent No. 2 issued notice under Public Premises (Evictionof Unauthorised Occupants) Act, 1971 on 24^ February, 1999 which was duly repliedbythe appellant and since the appellantwas apprehending that he maybe dispossessed,he choseto file a suit for Declarationand Injunction. The learned CivilJudge framed an issue regarding the maintainability of the suit. "Whether the suit of plaintiff is maintainable?"

¶3The learned Civil Judge referred to notice under Section 4(1) and Section 4(2) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 purportedto have been issued to appellanton 24^^ February, 1999 and thereafter reproduced two Sections, namely. Section 10 and Section 15 of the Public Premises (Evictionof Unauthorised Occupants)Act, 1971. Both these Sections read as under:

(10) "Finality of orders-Save as otherwise expressly provided in this Act, eveiy order made by an estate officeror appellate officerunder this Actshall be final & shall not be called in question in any original suit, application or execution proceedings and no injunction shall be granted by any court or other authority in respect of any action Page2of8 taken or to be taken in pursuance of any power conferred by or under this Act."

(15) "Bar of jurisdiction-No court shall have jurisdiction to entertain any suit a proceeding in respect of-

(a) The eviction of any person who is in unauthorised occupation of any public premises, or

(b) the removal of any building, structure or fixture or goods, cattle or other animal from any public premises under section 5A, or

(c) the demolition of any building or other structure made, or ordered to be made, under section 5B, or

(cc) the sealing of any erection or work or of any public premises under section 5C, or]

(d) the arrears of rent payable under sub-section

(1) of section 7 or damages payable under sub-section

(2), or interest payable under sub-section

(2A), of that section, or

(e) the recovery of-

(i) costs of removal of any building, structure or fixture or goods, cattle or other animal under section 5A, or expenses of demolition under sectionSB, or costs awarded to the Central Government or statutory authority under sub-section

(5) of section 9, or any portion of such rent, damages, costs of removal, expenses of demolition or costs awarded to the Central Government or the statutory authority.]"

(ii)

(iii)

(iv) (S

¶4The learned Civil Judge referred to the judgments in case tilted Union of India Vs. Babu Lai Gupta 6b Others 1975 ALJ 373 and in M/s Bharat Coking Coal Ltd. Vs. Estate Officers & Others AIR 1991 NOC 3(Pat) and held that the jurisdictionof the Civil Courtin respectof the premisewhich is governedby the Public Premises (Evictionof Unauthorised Occupants) Act, 1971 is barred and accordinglydid not entertain the said suit. This judgmentwas passed on 18^^ January, 2002.

¶5The appellantfeeling aggrieved by virtue of the aforesaidjudgmentand decreepreferredthe RegularFirstAppealwhichcame to be decidedby Shri O. P. Gupta,learnedAdditionalDistrictJudge,Tis HazariCourts,Delhividejudgment ' 3of8 dated 5^^ September, 2002. The ADJ while relying on the judgments given by the learned Civil Judge came to the same conclusion that as the premises are governed by the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, therefore, the said suit itself is not maintainable.

¶6The contention of the learned counsel for the appellant that on the basis of the agreement to sell and Will and other connected documents, he became the owner of the property. In order to support this argument the learned counsel relied upon the judgments in case titled Asha M Jain Vs. Canara Bank and Others 94(20011 DLT 841 and Kuldeep Singh Vs. Surinder Singh 1999 Raidhani Law Reporter 20 urging that these documents show that the title of the appellant in respect of the property in question and, therefore, as his right was being affectedand threatened action being initiated against the appellant under Section 4 of the Public Premises. (Eviction of Unauthorised Occupants) Act, 1971, therefore, suit is maintainable seeking Declaration as well as the Injunction.

¶7The learned ADJ referred to the latter judgments passed in AIR 2003 Delhi 120 and 128 f20061 DLT 407 in which it has been held that as per Section 54 of the TransferofPropertyAct and Section17(l)(b)ofthe RegistrationAct that a title of any immovable property worth more than Rs. 100/- cannot be transferred except by way of registeredsale deed. Since in the instant case there was no registeredsale deed, the learnedADJ has dismissedthe appeal of the appellant and upheld the order of the learned CivilJudge.

¶8The appellantfeeling aggrievedby virtue of the aforesaidjudgmentof the learnedappellatecourthas chosentofile the presentappealchallengingthe order of the appellatecourt dated 5^^ September,2005. The learnedcounselfor the appellanthasalso inhis appealformulatedsixquestionsoflaw purportedto arise in the instant appeal, which are reproduced as under; Page4of8 "(i) Whether the suit in the given facts is barred by the provisions of Public Premises (Eviction of Unauthorized Occupants) Act, 1971, and Civil Court has no jurisdiction to entertain and tiy the same.

(ii) ' Whether the question that the premises are not public premises and whether the appellant is not its owner and in occupation of the same can be determined without trail of the suit.

(iii) Whether the appellant is not bonafide purchaser of the flat for consideration without notice, and whether it can be decided on the based of framing an with regard to maintainability of the suit and without trial.

(iv) Whether the premises in question remains public premises after its sale by D.D.A and subsequent transfers by the allottee, and the purchasers are unauthorized occupants of the same.

(v) Whether the CivilCourt is debarred from entertaining the suit and deciding the question of title to the, premises and nature of the premises, simply on the ground that a notice was issued to the appellant in 1999 under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971.

(vi) What is the effect of acceptance of conversion charges from the appellant by the D. D.A as back as in 2004".

¶9It was on the basis of the aforesaid questions, the learned counsel for the appellant contended that these questions are substantial questions of law and therefore the present appeal need to be entertained by issuing show cause notice. I have gone through the questions whichhave been formulated by the counsel for the appellant as well as the other documents placed on record. I have thoughtfully considered the submissions made by the learned counsel for the appellant also.

¶10Aperusal ofthe questions formulatedbythe counsel for the appellant show that the same are only questions of fact and not questions of law much less questions of substantial questions of law.

¶11The issue which was involved in the instant' matter was that the appellant is claiminghimselfto be an owner of a propertywhich is a Janta Flat which was allottedoriginallyto defendant No.3 who had sold it to differentpersons and the said flat has kept on changinghands on number ofoccasionswhich the learned Page5of8 G counsel for the appellant contends that it happened almost six/ seven times till the present appellant became the owner. It seems that as the allotment of the aforesaid flat was obtained by fraud or misrepresentation. The respondent No.l, namely, DDA has initiated the action to cancel the said flat and take appropriate action for retrieval of the possession under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 because once the allotment of the flat is cancelled, it becomes a 'public premises' within the definition of Public Premises Act and accordingly the possession of the said premises is to be taken only in accordance with law. If this has been done by respondent No.l it cannot be found fault with. Nobody's can pass on title better than what he has. If the original allottee's title itself was defective on account of defective submissions of documents or on account of having procured the allotment of flat by cheating, fraud or misrepresentation, the respondent No.l/DDA is well within its rights to cancel this flat and take possession. It has been precisely done in the instant case by issuing notice to the allotteein whose name the flat stands allottedin the record of the DDA and a copy thereof is pasted at the conspicuous place at his residence or office. This is what be is done by the respondent No.l. The appellantbeingin possession ofthe flat has chosen to file replyto the noticealso and since he had an inclination that he may not get relief he preferred to the Civil Court.

¶12Thejudgmentreliedupon by the appellantin M/s Bharat CokingCoalLtd. Vs. Estate Officers 6s Others AIR 1991 NOC 3fPatl no doubt lays down that the questionwhethera premisesis a 'publicpremises'or not, ifit raises considerable difficultiesthen such complicated question of title could be decided by the Civil Court is not of any help to the appellant for the two simple reasons. First the facts of the said case are not given and secondly, there is no such complicated questionof title or the questionofthe premisesbeingallottedby the DDA as not being a public premises under the Public Premises (Eviction of Unauthorised Page6of8 \0 Occupants) Act, 1971 being involved in the instant case, therefore, ratio of the second case cannot be applied to the present case.

¶13Wherever properties, be that flats or the plots which are allotted by the DDA under the Nazul Land Rules or the Regulations framed by the DDA in exercise of its power to pass subordinate legislation become public premises in case the allotment of the case is cancelled for whatever reason and the only method prescribed in such a contingency to take possession is to resort to the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971.

¶14Therefore, after having taken the steps to cancel the flat, the same becomes ^ the public premises within the definition of Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and the retrieval of the possession has to be done in accordance with law under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 itself. It is not open to the appellant to contend that he is the purchaser of the flat, therefore, he can file the suit for Declaration and Injunction in respect of the said flat and the Civil Court has no jurisdiction.

¶15The two judgments in Asha MJain and Kuldeep Singh (Supra) which are ^ citedby the learnedcounselfor the appellantin orderto supporthis submission that he has become the owner of the property on the basis of the Will, Power of Attorneyetc. are not applicable to the facts of the present case because in both these cases the question of premises being public premises was not involved. Therefore, these cases are distinguishable from the facts of the present case.

¶16The learned Courts below have rightly passed the concurrent findings in view of Section 15 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 that the jurisdiction ofthe Civil Court is totally barred and accordingly the present appeal is not maintainable. In additionto this the present appeal also does not raise any question of law much less a substantial question of law which would warrant any interference. The questions which have been stated Page7of8 • • u hereinaboveare only questions of fact or questions of mixed fact and law but certainly not substantial question of law.

¶17Accordingly,the appealis dismissed. Since the appealitselfis dismissed, no order on the CM is called for. No order as to costs. vu/ DecemberA^, 2008 V.K. SHALI,J. KP 8of8

* IN THE HIGH COURT OF DELHI AT NEW DELHI + RSA No. 225/2008 & CM Nos. 14987/08. 14988/08 % Reserved on : 28.11.2008 Date of Decision: .12.2008 JASVINDER SINGH ....Appellant Through: Mr. B. L. Chawla, Advocate Versus DDA & OTHERS .... Respondents Through: None CORAM: HON'BLE MR. JUSTICE V.K.SHALI 1. Whether reporters of Local papers may be allowed to see the judgment? 2. To be referred to the reporter or not? 3. Whether the judgment should be reported in the Digest?