Mohd Azim vs Delhi Development Authority and Ors. - (High Court of Delhi) (27 Jul 2021)

In exercise of jurisdiction vested in present Court under Article 227 of the Constitution, Court is not to reappraise facts

MANU/DE/1402/2021

Civil

Present petition has been filed by the Plaintiff before the learned Trial Court under Article 227 of the Constitution of India, 1950 praying that the impugned order of the Additional District Judge/Appellate Court be set aside and as a consequence thereof, allow the application under Order XXXIX Rule 1 and 2 CPC filed by the Petitioner/Plaintiff and grant temporary injunction against the Respondent No.1/Delhi Development Authority ('DDA') restraining it from demolishing the premises in question till the suit was decided.

In the exercise of the jurisdiction vested in this Court under Article 227 of the Constitution, the Court is not to reappraise facts. The scope is limited to an inquiry as to the existence of some perversity or grave error in the impugned order that would call for rectification. As observed by the Supreme Court in India Pipe Fitting Co. v. Fakruddin M.A. Baker, the limitation of the High Court while exercising power under Article 227 of the Constitution is well-settled. Power under Article 227 of Constitution is one of judicial superintendence and cannot be exercised to upset conclusions of facts however erroneous those may be.

In the instant case, the suit has been filed by the Petitioner/Plaintiff, for an injunction only against the Respondent No.1/DDA. The Respondent No.1/DDA has claimed ownership of the property in question and described the Petitioner/Plaintiff as an encroacher. The Respondent No.2/DWB has described the Petitioner/Plaintiff as an unauthorized occupant. The Petitioner/ Plaintiff has claimed to be owner in adverse possession as against the Respondent No.2/DWB, while also claiming that since 2010, an application had been filed by him to Respondent No.2/DWB to treat him as a tenant. No declaration has been sought against Respondent No.2/DWB. Thus, the Petitioner/Plaintiff, from the side of both the Respondents is someone without any right to remain in possession of the suit property. He has not been able to prima facie show that, he has legally entered into the property and has a right to remain in the said premises. The demarcation report included the determination of the location of the suit premises. Modern methods of TSM has been used to demarcate the land. The claim of the Petitioner/Plaintiff that the suit premises fall in Khasra No.1151/3 has been found incorrect.

Furthermore, Respondent No.1/DDA has filed the document of the Ministry of Rehabilitation to show that Khasra No. 216 was transferred to it way back in the year 1968. The demarcation report has located the suit property as described by the Petitioner/Plaintiff to be falling in Khasra No.216. This also prima facie shows that the case of the Petitioner/Plaintiff to remain in possession is not made out.

As regards the claim of Respondent No.2/DWB, the notification relied upon by Respondent No.2/DWB is of the year 1989. There is nothing, on the basis of which, it can be said that before such notification, Respondent No.1/DDA had been notified or rather Respondent No.1/DDA was given an opportunity to show the documents to the Respondent No.2/DWB. The mere notification issued by respondent No.2/DWB, 30 years after the land had been transferred by the Ministry of Rehabilitation as an Evacuee Property to the DDA, cannot suffice to protect the possession of the Petitioner/Plaintiff. There is no perversity or error in the reasoning contained in the impugned order. Petition dismissed.

Tags : POSSESSION INJUNCTION ENTITLEMENT