- (1.) The seven plaintiffs have filed the present suit, pleading; (i) that the seven plaintiffs are residents of their respective houses on Khajoor Road, Karol Bagh, New Delhi and which stretch of road is barely 200 meters long; (ii) that the plaintiffs are owners / possessed of or otherwise sufficiently entitled to their respective properties on the said road; (iii) that the right of way of Khajoor Road has always been 80 ft., as is evident from Notification No.13/46/2006-ud/16071 dated 15th September, 2006 read with Corrigendum S.O. 1511 (E) dated 14th September, 2006 notifying the right of way of Khajoor Road as 24 meters i.e. 80 ft.; (iv) that as per the Delhi Development Authority (DDA), the right of way means the distance between property line to property line on either side of the road; (v) that in front of each house on Khajoor Road, on both sides of the road, beyond the right of way is a parcel of land which has been leased to each of the house owners as a "grassy plot"; the lease in respect of grassy plots of the plaintiffs is valid and subsisting; (vi) that the grassy plots falling in between the row of houses and the right of way are kept open to the sky and the residents have been using the grassy plot in front of their respective houses for keeping plants, flower pots etc.; (vii) that each of the plaintiffs has been in exclusive possession and enjoyment of the grassy plots in front of his house, to the exclusion of the defendant MCD; (viii) that the defendant MCD has not been exercising any control over the said grassy plots; (ix) though the defendant MCD termed the plaintiffs as "licencees" of the said grassy plots but the same is of no avail since the plaintiffs are in excusive possession of the grassy plots in front of their respective houses; (x) that from the year 1985-86 the defendant MCD had not raised any demand for rent / use and occupation charges also of the said grassy plots from any of the residents on the said road, though the plaintiffs have always been ready and willing to pay the same; (xi) that in the second week of March, 2008 the plaintiffs learnt that the defendant MCD was planning to concretize the grassy plots in front of their respective houses and make pavement thereon, though a pavement already exists; (xii) that while the plaintiffs were attempting to elicit information from the defendant MCD under the Right to Information Act, 2005 (RTI Act) qua the position of the said grassy plots, the defendant MCD attempted to carry out demolition, laying of pavement / road on the grassy plots aforesaid in front of the houses of the plaintiffs, claiming the right of way Khajoor Road to be of 100 ft.; (xiii) that ultimately the plaintiffs, in reply to their queries under the RTI Act were informed of the proposal of the defendant MCD of construction of new footpath at the extreme outer edge of right of way of the road, to avoid encroachment; (xiv) that though the plaintiffs had filed W.P.(C) No.5910/2008 in this regard but upon the Bench expressing the view that the questions arising for adjudication would require evidence, the said writ petition was withdrawn to file the instant suit; (xv) that the plaintiffs were put in possession of the grassy plots by the defendant MCD itself more than 40 years prior to the institution of the suit and the plaintiffs could not be deprived of possession of the grassy plots without due process of law; and, (xvi) even otherwise nobody can be dispossessed without following the due process of law. accordingly the reliefs of, (a) declaration that the right of way of Khajoor Road which include the pavement and excludes the grassy plots, is 80 ft.; (b) declaration that the defendant MCD is bound by the Notification aforesaid whereby the right of way of Khajoor Road is 80 ft.; (c) declaration that the Resolution No.21 dated 30th April, 1949 of the Building Committee did not determine the right of way of Khajoor Road; (d) declaration that lease in respect of grassy plots is valid and subsisting; (e) mandatory injunction directing and commanding the defendant MCD not to disturb the right of way of Khajoor Road as 80 ft.; and, (f) for permanent injunction restraining the defendant MCD from dispossessing the plaintiffs from the grassy plots in front of their houses except by due process of law, were / are claimed.
(2.) Summons of the suit and notice of the application for interim relief were issued to the defendant MCD and vide ex parte ad interim order dated 26th September, 2008 the defendant MCD and its employees were restrained from demolishing the boundary walls and from taking away the use of the grassy plots in front of the houses of the plaintiffs.
(3.) The defendant MCD has contested the suit by filing a written statement, inter alia on the grounds:- (a) that the width of Khajoor Road as per Resolution No.21 dated 30th April, 1949 of the Building Sub Committee is 99 ft.; (b) that the owners of the houses on either side of the Road have however encroached upon the Municipal land and the right of way of Khajoor Road; (c) that Tehbazari fees was recovered from only one of the residents of Khajoor Road, under Section 321 of the Delhi Municipal Act, 1957 (DMC Act) with respect to the grassy plot, upon noticing the encroachment thereof; (d) that the plaintiffs also along with their plaint have not enclosed any latest Tehbazari Receipt with respect to the grassy plots; (e) except for the year 1985 when encroachment fee up to 1985 was received, no Tehbazari also had been collected and the defendant MCD has not given any permission to use Municipal land and the plaintiffs are in encroachment thereof; (f) that no lease, in favour of any of the residents, of the grassy plots was ever created; rather being Municipal land it cannot be let out in any manner whatsoever; (g) in fact encroachments were removed by the defendant MCD in the month of July, 2007; and, (h) that no notice is required to be given for action under Sections 320 and 321 of the DMC Act for removal of encroachment from Municipal land.;