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Shri Anil Kumar v/s B. R. B. Construction Pvt. Ltd.

    Cs(Os) Appeal No. 1332 of 2007

    Decided On, 14 May 2008

    At, High Court of Delhi


    For the Appearing Parties: Pankaj Vivek, Rajender Dutt, Rohit K.Aggarwal, Sanjay Jain, Sunil Aggarwal, Advocates

Judgment Text

S. Ravindra Bhat, J.

( 1 ) THIS is an application under Order VII Rule 11 Code of Civil Procedure (hereafter referred to as "cpc") filed by the defendant Nos. 5 and 6 alleging that the suit is not maintainable by resons of Sections 81 and 83 of the Delhi Land Reforms Act, 1954 read with Section 185. The plaintiffs have claimed the following reliefs:

"a) A decree of Permanent Injunction restraining the Defendant Nos. 1 to 8, their employees, agents, representatives from encroaching upon or from raising any type of construction including the boundary walls in Khata Khatoni Nos. 126,127,128, 313, 318, 319, 320, 351 and 352 in the Revenue Estate of Village Samalkha, District South West, New Delhi 110037; b) A decree of mandatory injunction directing the Defendant Nos. 1 to 8, their employees, agents, representatives to demolish the pucca structure/wall raised on the land of the Plaintiffs in Khata Khatoni Nos. 126, 127, 128, 313, 318, 319, 320, 351 and 352 in the Revenue Estate of Village Samalkha, District South-West, New Delhi 110037. "

( 2 ) ACCORDING to the averments, the plaintiffs are joint owners of agricultural land, described in the suit along with the others. The averments in para 5 to 15 describe the various holdings and the co-ownership of different defendants. It is further alleged that the undivided share in the agricultural land were purchased by defendants 1 to 8 from the legal heirs of late Sheo Ram, the common ancestor of the plaintiffs. It is averred, in this background, that on 5th June, 2007, the said defendants 1 to 8 approached the plaintiff's land with the intention of encroaching it and dispossessing the plaintiffs from the possession of their portion.

( 3 ) THE plaintiffs claim that the said defendants do not have any right, to so grab or encroach or to raise any kind of construction on the land in their (plaintiffs') possession. It is alleged in para 18 that even if the said defendants are co-owners yet they cannot claim possession of the land which is in the plaintiffs' possession. The plaintiffs further allege that similar unauthorized acts to encroach upon their portion were made on 18th July, 2007. It is alleged that the said defendants want to construct on certain portions of land which they cannot do. According to the plaintiffs, the cause of action arose on 5. 6. 2007 and again on 18. 7. 2007. Defendant No. 1 to 8 tried to encroach upon the undivided land within the occupation of the plaintiffs by raising unauthorized construction. It is also claimed that the cause of action continues to be subsist.

( 4 ) THE defendants in support of their submissions have alleged that the suit is barred by reason of Section 185 of the Delhi Land Reforms Act (hereafter referred to as "the Act" ). It is claimed that the injunctive relief claimed in the present case can be secured from the Revenue Authority either by seeking recourse to Section 81 or Section 83. Learned counsel for the applicant submitted that the second 83 (a) read with Section 185 constitutes a bar to the maintainability of the suit and, this Court should, therefore, in exercise of its powers under Order VII Rule 11 (d) shall reject the plaint.

( 5 ) MR. Sanjay Jain, learned senior counsel made a textual distinction between Sections 81 and 83. He contended that the former confers power upon the Revenue Assistant to initiate proceedings for ejectment upon a suit filed by the Gaon Sabha for use of land for purpose other than agricultural. It is contended that Section 83 has be read with as adjunct, or a consequential to that power as is evident from the expression "in lieu of suing for ejectment" occuring in the latter provision.

( 6 ) LEARNED counsel contended that the choice of electing the remedy lies with the plaintiffs. In this case, the plaintiffs can seek injunctive relief by approaching the civil Court since they are not, for the moment, disputing the co-ownership of the defendants. In the circumstances, if the plaintiffs were to approach the Revenue Assistant under Section 81, that would possibly imperil their holding and possession since the ejectment proceedings may not stop with the defendants.

( 7 ) LEARNED counsel next relied upon a judgment of this Court reported as Siri Ram vs. Jai Parkash and Ors. , 1991 Raj. L. R. 275 where this court interpreted Section 185 in the following terms:

"8. From the perusal of this section it is clear that this saves only those cases which are mentioned in column 7 of Schedule I of the Delhi Land Reforms Act. This, the scope of S. 185 is confined to the specific matters enumerated in Schedule I of that Act and to none other. The present suit of the plaintiff for declaration and permanent injunction seeking that he is sole heir and successor of Om Parkash is not covered under specific matters enumerated in Schedule I of the Act and, therefore, the civil court has every jurisdiction to try the suit. Reliance was placed by the learned counsel for the respondent No. 1 of Entry 28 of the Schedule I and, according to him, the jurisdiction of civil court is barred. Mere perusal of Entry 28 of Schedule I relates to the declaratory suit u/s. 104 of the Act. Such a suit is permissible to be filed by the Gaon Sabha only against any person claiming to be entitled to any right in any land or his right therein. Here, it is not a suit by the Gaon Sabha. Therefore, this argument is of no help to respondent No. 1. "

( 8 ) FOR a better appreciation of the case, it would be necessary to extract Sections 81,83 and 185 of the Act; they read as follows:

"81. Ejectment for use of land in contravention of the provisions of this Act.-- (1) A bhumidhar or an Asami shall be liable to ejectment on the suit of the Gaon Sabha or the landholder, as the case may be, for using land for any purpose other than a purpose connected with agriculture, horticulture or animal husbandry, which includes pisciculture and poultry farming, and also pay (damages) equivalent to the cost of works which may be required to render the land capable of use for the said purposes. xxx xxx xxx 83. Suit for compensation and repair of the waste or damage.-- Notwithstanding anything in Section 81, the Gaon Sabha or the land-holder may, in lieu of suing for ejectment, sue-- (a) for injunction with or without compensation, or (b) for the repair of the waste or damage caused to the holding. xxx xxx xxx 185. Congnizance of suits, etc. , under this Act.-- (1) Except as provided by or under this Act no court other than a court mentioned in column 7 of Schedule I shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), take cognizance of any suit, application, or proceedings mentioned in column 3 thereof. (2) Except as hereinafter provided no appeal shall lie from an order passed under any of the proceedings mentioned in column 3 of the Schedule aforesaid. (3) An appeal shall lie from the final order passed by a court mentioned in column 3 to the court or authority mentioned in column 8 thereof. (4) A second appeal appeal shall lie from the final order passed in an appeal under sub-section (3) to the authority, if any, mentioned against it in column 9 of the Schedule aforesaid. "

( 9 ) THE reliefs claimed in the present case undeniably are injunctive in nature. Therefore, prima facie, the reliefs appear to be covered by Section 83 (a ). The question is whether the said provision is a supplementary, in aid of Section 81 as contended by the plaintiffs or an independent one as contended by defendants. In case of the former, the plaintiffs' choice to maintain the proceedings is preserved. However, if it is held that Section 83 confers an independent power, then the suit may be barred by virtue of Section 185.

( 10 ) SECTION 81 (1) enacts that the bhumidhar would be liable to ejectment of the suit instituted at the behest of the Gaon Sabha or land owner as the case may be for using the land for purposes other than what are deemed agricultural (a term which is statutorily defined) under the Act. Section 81 (2) confers suo moto power upon the Revenue Assistant to seek direct ejectment and also recover damages, further to the power under Section 81 (1 ). Textually itself, the machinery for ejectment is not exclusively set into motion by the Gaon Sabha; it can also be independently brought through a suit filed by the land owner. Undoubtedly, this provision spells out a larger relief. However, it is restricted in its scope, in that it enables the land owner or the Gaon Sabha to file a suit for ejectment from the land in case the act complained of does not not amount to agricultural use.

( 11 ) SECTION 83 begins with a non-obstante clause and makes express reference to Section 81. It enacts that the Gaon Sabha or the land owner may "in lieu of" seeing for ejectment, sue for injunction with or without compensation (clause (a) ). It is now well settled that a non-obstante clause has to be given effect to in its own terms. In this case, Section 83 occurs after the Section 81. Secondly, the express reference to Section 83 makes parliamentary intendment clearly beyond any shade of doubt i. e. that anything stated in Section 81 should not be construed as an impediment in regard to matters enacted in the latter provision. So viewed, the amplitude of the relief, claimed in Section 83 cannot be cut down in the manner suggested on behalf of the plaintiffs. Therefore, the expression "in lieu of" has also to be construed in its own terms as "in stead" rather than in aid of the power under Section 81.

( 12 ) THE above reasoning is also supported by Entry 18 to Schedule-I to Section 185 which enacts the bar to jurisdiction of the civil court. It reads as follows: "suit for injunction or for the repair of the waste or damage caused to the holdings"

( 13 ) THE reference for suit for injunction is cast the widest amplitude if this is read with Section 83. The nature of the reliefs which are available by provisions of Act have to be construed in a wide and liberal manner and not restrictively as suggested on behalf of the plaintiffs.

( 14 ) THE Act is a complete code. It regulates agricultural holdings and spels out various categories of rights (bhumidari, Asami etc.) as well as condition for their recognition or grant. It creates and empowers a hierarchy of revenue authorities who have powers to administer its provisions. The Act is meant also

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to preserve agricultural use of land. The various actions which individuals can initiate include proceedings for declaration as well as partition. In this case, the title of the plaintiffs to the lands in their possession as joint owners is not questioned. Their alleged encroachment and threat to construct on the plaintiffs' portions, however is sought to be injuncted. Having regard to the amplitude of powers under Sections 81 and 83, particularly the latter, the Revenue Assistant has exclusive jurisdiction to grant such relief. ( 15 ) IN view of the above reasoning, the Court is of the opinion that the subject matter of the suit i. e. an injunction to restrain the defendants from raising any constructions on the suit property, are comprehended by provisions of Section 83 thus attract the bar under Section 185. The suit is, therefore, not maintainable. ( 16 ) THE application is allowed. CS (OS) 1332/2007 in view of the order on the above application under Order VII Rule 11 CPC, the suit is accordingly rejected. It is open to the plaintiffs to seek appropriate remedies in accordance with provisions of the Delhi Land Reforms Act. No costs.