IN THE HIGH COURT OF DELHI AT NEW DELHI * + % RSA No.126/2013 DELHI DEVELOPMENT AUTHORITY24h October, 2016 ..... Appellant Through: Mr. Pawan Mathur, Advocate. versus ..... Respondent SMT. RAJPATI DEVI CORAM: HON’BLE MR. JUSTICE VALMIKI J.MEHTA Through: None. To be referred to the Reporter or not?. VALMIKI J.
MEHTA, J (ORAL) 1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) is filed by the Delhi Development Authority (DDA), which is the defendant in the suit, impugning the concurrent Judgments of the courts below; of the Trial Court dated 22.9.2011 and the First Appellate Court dated 22.3.2013; by which the courts below have decreed the suit for mandatory injunction filed by the respondent/plaintiff and directed the appellant/defendant to allot a plot of 12.5 sq mtrs to the respondent/plaintiff. Trial court had decreed the suit holding that the respondent/plaintiff had to be granted a plot of 18 sq mtrs, but, the first appellate court reduced the plot size to 12.5 sq mtrs inasmuch as the first appellate court found that the RSA No.126/2013 Page 1 of 9 respondent/plaintiff was in possession of the jhuggi not pre 1990, when 18 sq mtrs plot was to be allotted, but post 1990 period upto 31.12.1998-the cut off date of the policy for allotment when only 12.5 sq mtrs plot is to be allotted.
2. As per the plaint, the respondent/plaintiff pleaded that she was in possession of jhuggi in plot no.B-1/630, Janakpuri, New Delhi and her jhuggi was demolished by the officials of the appellant/defendant on 8.1.2001 by force. The appellant/defendant further pleaded that in spite of her pleas the appellant/defendant did not allot the alternative plot of the requisite size although the respondent/plaintiff is said to have with her the necessary documents of the possession of the jhuggi being the ration card, identity card etc. Accordingly, it was prayed that the respondent/plaintiff be allotted a plot of 18 sq mtrs. Appellant/defendant contested the suit and stated that as per the policy, a person who is in occupation prior to the year 1990 was to be given a plot of 18 sq mtrs but the persons who were in illegal possession/squatters after 1990 but till 31.12.1998, such persons were to be given a smaller plot of 12.5 sq mtrs, however, the respondent/plaintiff was not found at the plot in question in the survey and therefore the respondent/plaintiff being not in possession of any jhuggi as per the in survey list, the respondent/plaintiff hence was not entitled to any allotment either of a 18 sq mtrs or of a 12.5 sq mtrs plot. RSA No.126/2013 Page 2 of 9 3. After pleadings were complete, the trial court on 24.11.2003 framed the following issues:-
"Whether the suit is not maintainable for want of service of notice “1. under Section 53-B of DD Act?. OPD Whether the plaintiff is entitled for decree of mandatory injunction as 2. prayed?. OPP3 Relief.” 4. Both the parties led evidence and proved the documents which are stated in paras 5 and 6 of the judgment of the trial court and which paras read as under:-
"“5. In order to prove her case, plaintiff examined only one witness. Plaintiff herself entered into the witness-box as PW1 who vide her affidavit Ex.P1 relied upon the documents Ex.PW1/A to Ex.PW1/A-6. Ex.PW1/A is the photocopy of ration card, Ex.PW1/A-1 is electoral I-card, Ex.PW1/A-2 is the photocopy of Saving Bank Account/pass book of PNB, Ex.PW1/A-3 is legal notice dated 03.07.2001, Ex.PW1/A-4 is acknowledgment of legal notice, Ex.PW1/A-5 is postal receipt dated 04.07.2001 and Ex.PW1/A-6 is certificate of postal receipt.
6. In order to prove their case, defendant/DDA has also examined one witness i.e. DW1 Sh. M.W. Abbas, Junior Engineer (C), L.M. Branch, West Zone, DDA who vide his affidavit Ex.DW1/X reiterated the contents of the written statement and relied upon the documents Ex.DW
and Ex.DW1/2. Ex.DW
is the possession proceedings and Ex.DW
is the survey/allotment register.” 5. Trial court by its judgment has held that by virtue of the factum of the documents proved by the respondent/plaintiff being the ration card and the passbook of the Punjab National Bank, it was found that the respondent/plaintiff was in possession of the jhuggi on plot no.B-1/630, Janakpuri, New Delhi and hence entitled to allotment of a plot of 18 sq mtrs. The survey list filed and proved by the appellant/defendant as Ex.DW
was disbelieved as the trial RSA No.126/2013 Page 3 of 9 court observed that the appellant/defendant failed to show the basis on which the survey list was prepared and why the name of the respondent/plaintiff was not mentioned despite the fact that the respondent/plaintiff had proved the ration card and passbook of the year 1996. The first appellate court has upheld the findings of the trial court but reduced the plot area to 12.5 sq mtrs inasmuch as the documents filed and proved by the respondent/plaintiff were only of post 1990 period. 6(i) This Regular Second Appeal was admitted for hearing on 18.2.2014 when the following substantial questions of law were framed:-
"“1. Whether the courts below have committed a perversity in arriving at a finding that there existed a ration card of the respondent of the year 1997 inasmuch as the very identity of the respondent is in doubt not only because of the name, but also because of the ration card being of another property?.
2. Whether the courts below have committed an illegality and perversity in holding that the respondent was in possession of any part of the property being plot No.630, Block B-1, Janakpuri, New Delhi inasmuch as actually the respondent/plaintiff was not in possession of the said property for being entitled to alternative allotment either of 18 sq mtrs or 12.5 sq mtrs?.” (ii) In my opinion, the substantial questions of law have to be answered in favour of the appellant/defendant and against the respondent/plaintiff for the reasons given hereinafter. RSA No.126/2013 Page 4 of 9 7. Three documents have been proved by the respondent/plaintiff to show her possession of jhuggi in plot no.B-1/630, Janakpuri, New Delhi. Let us see whether these three documents have proved the case of the respondent/plaintiff of being in possession of the jhuggi when the survey was conducted or in any case on 8.1.2001 when the jhuggis were demolished.
8. The first document is the ration card showing the name of the plaintiff Smt. Rajpati wife of Sh. Ram Murat at serial no.1 with their being two other family members, namely Sh. Shankar and Mata Devi. Sh. Shankar and Mata Devi were the son and daughter of the respondent/plaintiff, Smt. Rajpati Devi. No doubt, this document shows that respondent/plaintiff was in possession of jhuggi in plot no.B-1/630, Janakpuri, New Delhi, however, this document does not necessarily establish that the respondent/plaintiff was in possession of the jhuggi when the survey was conducted and as shown thereafter in the register Ex.DW
or as on 8.1.2007 when the jhuggis were demolished. There is no reason why if names of as many as 86 persons were mentioned to be found on the date of survey as occupying different parts of the larger plot B-1/630, Janakpuri, then why the officials of the appellant/defendant will not mention the name of the respondent/plaintiff if she was in occupation of a jhuggi on plot no.B-1/630, Janakpuri, New Delhi. I may note that the respondent/plaintiff in her cross-examination stated that she was not found in the jhuggi at spot because on the date of survey she had gone to her village to RSA No.126/2013 Page 5 of 9 meet her mother, however, surely on coming back from the village she would have known from all neighbours that a survey was conducted because such type of issues which take place with respect to survey in jhuggi clusters are always normally talked about. Even assuming a general person may not have talked about the conduct of the survey, but, surely the sister of the respondent/plaintiff who was one of the residents of the jhuggis in Janakpuri and who was also allotted an alternative plot, as admitted by the respondent/plaintiff in her deposition, would not have told the respondent/plaintiff of the survey being conducted and accordingly respondent/plaintiff, if she was really living in the jhuggi in plot no.B-1/630, then, she would have made some sort of representation to the appellant/defendant/DDA. If after all the respondent/plaintiff could have gone to a lawyer and got sent a Legal Notice dated 3.7.2001 Ex.PW1/A3, then, there was no reason why after coming back from the village, she could not have got a notice or any other communication sent to the appellant/defendant that she was not present at the time of survey because she had gone to the village and that her home be added in the survey list. Also, it is seen that the respondent/plaintiff states that she had gone to the village to meet her mother, but, it is seen that as in January, 2001, her daughter would have been major and the son would have been more or less a major in view of the ages given in ration card Ex.PW1/A, and that it is not the case of the respondent/plaintiff that her children also went with her to the village. RSA No.126/2013 Page 6 of 9 Therefore, learned counsel for the appellant/defendant seems to be right in arguing that though at one point of time respondent/plaintiff would have resided in a jhuggi in plot no.B-1/630, thereafter, either the jhuggi would have been sold by the respondent/plaintiff or otherwise respondent/plaintiff would have shifted away from the jhuggi in plot no.B-1/630, and accordingly, neither the respondent/plaintiff nor any of her two family members were found in any of the jhuggis when the survey was conducted by the officials of the appellant/defendant and then so duly recorded in the survey register Ex.DW1/2. Further the ration card is of May, 1997 and thus is not a proof of respondent/plaintiff living in the jhuggi on the date of survey or on 8.1.2001 when demolition took place. Therefore, in my opinion the courts below have clearly erred in relying upon the ration card to hold that respondent/plaintiff was entitled to allotment of the alternative plot.
9. So far as the election identity card Ex.PW1/A1 is concerned, it is seen that in this election identity card, though the photograph is of the respondent/plaintiff as noted by the trial court at the time of leading of evidence, however, in this election identity card, the name which is appearing is of one Smt. Nirmala wife of Sh. Satya Narayan and not the name of the respondent/plaintiff Smt. Rajpati Devi wife of Sh. Ram Murat. Further, the election identity card is dated 30.5.1995 and not of the date of the survey as shown from the survey register Ex.DW
and for the same reason the election RSA No.126/2013 Page 7 of 9 identity card cannot be co-related to the occupation of the respondent/plaintiff of the jhuggi as on 8.1.2001 when the demolition exercise took place because the election identity card is dated 30.5.1995. The election identity card therefore cannot help the respondent/plaintiff. It is also seen that the election identity card relied upon by the respondent/plaintiff shows her to be resident of jhuggi no.43 in plot no.B-1/630, but, in the survey report in the jhuggi no.43, one Sh. Narain son of Sh. Sriniwas was found and which would be because as on the date of survey the respondent/plaintiff would not be in occupation of the jhuggi as already discussed above. It is also relevant to note that the ration card of Sh. Narain son of Sh. Sriniwas of jhuggi no.43 is dated 21.7.1997 showing that ration card of the respondent/plaintiff of 30.5.1997 was of a prior date and hence on leaving by the respondent/plaintiff of the jhuggi in question the same would have been with Sh. Narain son of Sh. Sriniwas who would have got his ration card made thereafter on 21.7.1997 and hence his name was included in the survey list.
10. So far as the passbook proved by the respondent/plaintiff Ex.PW1/A2 is concerned, it is seen that even this passbook is of June, 1996 and that actually the name of the account holder is Smt. Raj Pati wife of Sh. Ram Sarup and not Rajpati wife of Sh. Ram Murat and who is the respondent/plaintiff. Therefore, this passbook of Punjab National Bank once again cannot help the respondent/plaintiff not only because it is not in the name RSA No.126/2013 Page 8 of 9 of the respondent/plaintiff but also because it is of the earlier year 1996 and not of the year/period when the survey would have been conducted and thereafter demolition exercise taking place in January, 2001.
11. The result of the aforesaid discussion is that whereas the passbook and election identity card are not of the respondent/plaintiff, and therefore, have been most illegally and perversely relied upon by the courts below to grant the relief, even the ration card proved by the respondent/plaintiff cannot help her for the reason stated above.
12. In view of the above this Regular Second Appeal is allowed and the substantial questions of law are answered in favour of the appellant/defendant and against the respondent/plaintiff. The Judgments of the courts below dated 22.9.2011 and 22.3.2013 are set aside, and thereby the suit of the respondent/plaintiff will stand dismissed. Parties are left to bear their own costs. OCTOBER24 2016 ib/Ne VALMIKI J.
MEHTA, J RSA No.126/2013 Page 9 of 9