JUDGMENT
P.K. Bahri, J.
(1) With the consent of all the counsel for the petition in both the suits, arguments have been heard in the aforesaid two applications in the respective suits as common questions of facts and law are involved in both the matters, so both the applications are being disposed of by this common judgment. A copy of the judgment shall be placed in the other
(2) Suit No. 2398187 has been instituted by Delhi Dayalbagh Cooperative House Building Society Limited and Dayalbagh Delhi Dayalbagh Commissioner of Income Tax House Building Society Ltd. & another .283 Vs Municipal Corporation of Delhi & others & Nitin Wadhwan ‘(through his father and next friend Shri Sushil WadhTwan) vs. Delhi Dayal Bagh Commissioner of Income Tax House Building Society Ltd. & another) Soami Nagar Residents Society (Delhi) seeking the relief of declaration to the effect that open space marked ‘J’ in the playfield Along with the suit vested in and is in possession of Plaintiff No. 1 who is entitled to its exclusive use as an open space and a decree for perpetual injunction restraining for defendant Municipal Corporation of Delhi and its officers etc. from making the forcible entry in the said space.
(3) In the application filed in that suit temporary injunction is- sought against the Municipal Corporation of Delhi and its employees restraining them from entering into possession of the said open space forcibly till the disposal of the suit.
(4) Suit No. 562189 has been instituted by Nitin Wadhawan and Soami Nagar Welfare Council (Regd.) seeking the relief of declaration that lease deed executed on June 9, 1981, in favor of Delhi Radhaswami Satsang Association by Delhi Dayalbagh Cooperative House Building Society Limited is not binding on the plaintiffs or defendant No. 4-Municipal Corporation of Delhi and that the said Society cannot obstruct or prevent the faking over and development of the said vacant space by the Municipal Corporation of Delhi for purposes of a park and a swimming pool and a relief of injunction is sought restraining the said Dayalbagh Society and its associates from preventing the plaintiffs and other residents of the colony from using the said open space and for mandatory injunction requiring the Municipal Corporation of Delhi to take over and develop the said open space as a park with a swimming pool in it. The application has been moved in that sut seeking interim injunctions of the same type till the disposal of the suit.
(5) The Delhi Dayalbagh Cooperative House Building Society Limited (hereinafter referred to as the ‘Dayalbagh Society’) had developed the land after taking necessary permission from the Municipal Corporation of Delhi which was granted vide Resolution No. 172 dated May 31, 1963. According to the said resolution, the Dayalbagh Society was required under the by laws to at least keep 2.42 acres open space for various purposes. The Dayalbagh Society, however, in fact had kept an area of 3.65 acres as open spaces. It was mentioned that in the layout plan a provision had been made for a separate community hall and a swimming pool with a park and that lay out plan provides for adequate facilities which are required for a population of 2,232 persons. The Municipal Corporation of Delhi (for short ‘Corporation’) under Section 313 of the Delhi Municipal Corporation Act, 1957 (hereinafter referred to as ’tile Act’) imposed the conditions that the Dayalbagh Society shall develop and lay out the services in accordance with the layout plan and the Dayalbagh Society will transfer to the Corporation free of cost the total land in the colony under open spaces, roads, public parks and such other public utility services including the land set apart for schools and similar public institutions. It is admitted fact that 19 open spaces were kept by the Dayalbagh Society in the sanctioned plan and out of which 14 open spaces which pertain to parks, schools etc. have been already transferred to the Corporation in view of the aforesaid condition. Five of the open spaces including the open space now in dispute have not been transferred by the Dayalbagh Society in favor of the Corporation as yet.
(6) Mr. Ishwar Sahai, counsel for defendants 2 and 3 in the dase filed by the Dayalbagh Society and for the plaintiffs in the other Suit, has vehemently argued that the Dayalbagh Society should not be granted any interim injunction inasmuch as the said Society is estopped from pleading that it is not legally bound to transfer the open space in question in favor of the Corporation and at least the Dayalbagh Society has not come to this Court with clean hands inasmuch as the said Society had got sanctioned the plan subject to certain conditions and the said Society is now going back on one of the conditions imposed while sanctioning the layout plan by not agreeing to transfer the land in question in favor of the Corporation. He has also pointed out that the land in question was, in fact meant for use as a park and under the various provisions of the Act the Corporation is legally duty bound to maintain the said park and thus, the Dayalbagh Society is not entitled to obtain any injunction from this Court. He has argued that in fact, the residents of the said colony are entitled to use the sail site as a public park and are entitled to have the injunction restraining the Dayalbagh Society and its sub-lessee from interfering in the use of the said site as a public park by the residents of the said colony.
(7) The learned counsel for the Society, on the other hand, has contended that the Corporation is estopped from claiming that the Dayalbagh Society is bound to transfer the said open space inasmuch as at the time the other 14 open spaces were transferred to the Corporation, the Corporation did not raise any objection that the said Society was bound to transfer the open space in question as well. It is also contended that the Dayalbagh Society has been continuously in possession of the site in question from the very inception for all there years since 1963; thus, the peaceful possession of the Society cannot be disturbed except in accordance with law and the Society is entitled to have injunction from this Court tin the disposal of the suit to the effect that the Society’s possession be not disturbed in any manner except in accordance with law. He has also contended that in fact,the site in question was meant to be kept as an open space and was not to be used as a park and infact, there exists two public parks in the said colony which are being used by the residents of the. said colony. Hence, he has argued that interim injection till the disposal of the suit should be granted in favor of the Society and application for grant of injunction by the residents in the other suit be rejected. He has also argued that in fact, a plea for grant of mandatory injunction has been made in the other Suit which cannot be granted as an interim relief except in a very exceptional case and that too only to restore the status quo existing at the time of the filing of the suit.
(8) It is indeed, not in dispute before me that at no point of time this open site in question has been transferred to the Corporation and the Society has been in continuous possession of this open site for all these years. Counsel for the Society has referred to Krishna Ram Mahale v. Mrs. Shobha Venkat Rao, , where the Supreme Court has reiterated the well settled principle of law that it is well settled law in this country where a person is in settled possession of property, even on the assumption that he had no right to remain on the properly, he cannot be dispossessed by the owner of the property except by recourse to law. The Society has an argue able case as to whether the Corporation is legacy entitled to still insist on the Society to transfer the remaining open spaces including the site in question to the Corporation when the Corporation had not insisted upon such transfer at the time other 14 open sites were transferred to the Corporation. At any rate, the Society being in continuous peaceful possession of the ate in question Is entitled to keep the possession till the Corporation takes legal proceedings for enforcing the condition imposed in the order of sanction that the Society has to transfer all the vacant sites in favor of the Corporation by filing some suit or any other legal remedy available to the Corporation. Mr. Ishwar Sahaj, the learned counsel for the other side on the other hand has argued that the Corporation is not to take any physical possession of the open site in question bill is only to take up the maintenance of the said open sits for the purpose of converting the same into a public park and thus, the Corporation cannot be restrained by any injunction not to perform its public duty. However, it must be clarified at this stage that it is question of fact as to whether the site in quesf’on was meant to be used as a public park in accordance with the sanctioned plan. I have been taken through the copies of the sanctioned plan filed in these cases but I find that it is not dear that site in question is to be used as a park. No doubt, in the contents of the resolution it has been mentioned that provision has been made for a swimming pool and a park but there is no Indication that (he said park is to be located in the site in question. So, unless and until it is proved that the site in question is meant to be used as a park the Corporation cannot take resort to provisions of Section 42(t) and Sections 431 & 433 of the Act to which my attention has been drawn during the course of the arguments.
(9) The learned counsel for the Society has also made reference to Greater Kailash-II Welfare Association & Another v. Mcd & Others, , where it is laid down that layout plan which has been sanctioned the same can be later on modified by the Municipal Corporation of Delhi under Section 313 cf the Act. In the said casø, under the sanction plan 9 sites in addition to the other sites were to be transferred to the Corporation but those 9 sites were not transferred by the Society and 75 other sites were transferred ultimately by the Society in favor of the Corporation. In that case also, the Corporation had not pressed its claim in respect of nine sites and the claim of the Society in respect of those nine sites was upheld. Reference was also made to D.L.F. Universal Ltd’. New Delhi & others v. Arjan Singh & others, , (3) wherein in the sanctioned plan certain plots were earmarked for public building. The Division Bench held that such ear-marking does not create trust or constructive trust obliging the company to hold the said plots for any common good. A broad argument was also put up by the learned counsel on lie half of the Society that the imposition of the condition for transferring all the open sites in favor of the Municipal Corporation of Delhi is unconscionable condition which the Society was forced to accept in order to get the layout plan sanctioned from the Municipal Corporation of Delhi and the same is not binding on the Society, and support was drawn from th& observe Municipal Corporation of Delhi & others and Nitin Wadhawan (through his father and next friend Shri Sushil Wadhawan) vs. Delhi Dayal Bagh Commissioner of Income Tax House Building Society Ltd. & another. observation made in Central Inland Water Transport Corporation Ltd. & Another v. Brojo Nath Ganguly and Another, . (4) All these interesting questions of law which arise for decision would be gone into in detail ai the final stage after parties bad led evidence. Suffice it to say at present that Dayal bagh Society has a prima facie case and balance of convenience is also in favor of the Society and no irreparable harm or injury is likely to occur to the opposite side if the Society’s possession is protected till the disposal of the suits.
(10) Mr. Sahai has referred to Ajudhya Parkash v. Administrator, Municipal Committee, Ludhiana, (64) 1962 Plr 982, (5) in which it was laid down that an injunction cannot be granted when the conduct of the applicant or his agent has been such as to disentitle him to the assistance of the Court. He has contended that the Society having enjoyed the benefit of sanctioned layout plan could not legally keep back the site in question from the Corporation and this conduct of the Society should disentitle the Society to have injunction from this Court. I do not think that it can be said in the present case that the conduct of the Society is charged with any malafide so as to disentitle the Society to obtain injunction as already mentioned above, the Society has been in peaceful possession of this open ate for all these years and the Corporation had not insisted upon transfer of this particular site at the time the Corporation had taken into possession the other 14 open sites from the Society. So, in my view, the Society is entitled to have the interim injunction from this Court till. the disposal of the suit.
(11) Mr. Sahai has also referred to Nirmal Kumar Moulik & others v. Smt. Champabala Roy and Others, . wherein a person had prepared a plan to settle a residential colony and had sold plots to others on the representation that a certain land marked as park in the plan would be used as such by them. It was held that the said person is estopped from claiming the said land subsequently as his private land. This judgment is not applicable to the facts of the present case inasmuch as prima facie it is not as yet established that the open site in question was meant to be used as a park. The sanctioned layout plan had shown this particular sit” as an open space and the Society is keeping this site as an open space strictly in accordance with the sanctioned plan. However, there is nothing to show either from the sanctioned plan or from ‘any other document at present that open site in question is meant for use by the residents of the said colony. Mr. Sahai also has tried to take some support from the observations made in Union of India v. SyedShah Nasir Hussain, in the said case, the plaintiff had settled tenants on the property of Dargah. “The land was meant for use for religious purpose only and could not be let out for personal profit. As the plaintiff in that case had misused the land for his personal profit, it was held that a discretionary relief of injunction could not be granted to such a plaintiff. It was observed that the person who seeks discretionary remedy must come to the Court with clean hands. Nothing said in this case is applicable to the facts of the present case, as discussed above.
(12) Lastly, reference was made to K. Rarnadas Shcnoy v. The Chief Officers, Town Municipal Council, Udipi & Others . In the said case the municipality had acted in excess cf the powers and allowed illegal construction of a cinema building It was held that such an illegal construction affects the lights of the person residing in the neighborhood and the court would not come to the assistance of the person who seeks its aid to relieve him against express statutory provision. Such is not the case here. I may mention here that it is not disputed before me that in that colony there already exist two public parks which are being enjoyed by the residents ‘of the said colony. So, there is no balance of convenience in favor of the residents of the said colony for getting any interim injunction against the Society in respect of ‘.he site in question.
(13) In view of the above discussion, I allow the application I.A. 8261187 in Suit No. 2398187 and grant interim injunction restraining the defendants from interfering with the possession of ‘the site in question of the plaintiffs till the disposal of the suit except by due process of law. The plaintiffs shall not raise any construction in the said open site till the disposal of the suit.
(14) IA. 1580189 in Suit No. 562189 is dismissed.