JUDGMENT
Vijender Jain, J.
(1) In these suits identical applications have been moved by the plaintiffs under Order 39 Rules I and 2 read with Section 151 of the Code of Civil Procedure praying that the defendants be restrained from dispossessing the plaintiffs and they be further restrained from demolishing temporary ‘Khokha’ type office structure and defendants be further restrained from carrying out any destruction of marble slabs and other stones lying therein on the land and plaintiff should not be obstructed from the use and enjoyment of the land.
(2) Shri L.R. Gupta, Sr.Advocate appearing on behalf of the plaintiffs argued that the plaintiffs are in occupation and possession of the land by virtue of either being the owner as having purchased the land from their previous owner by virtue of sale-deed and in some cases the land is in occupation of the tenants who are doing the business of selling marble stone etc.
(3) The main contentions urged before me by the learned counsel for the plaintiffs are three-fold. At the first instance it has been argued that the Delhi Development Authority (for short ‘DDA’) issued a notification on 11.8.1993 under sub-sec (1) of Section 12 of the Delhi Development Act, 1957 (hereinafter referred to as the Act) declaring certain area in the said notification as ‘development area’ number being 125, Zone No.F-15, area in acre 2100 and the description of the area with which I am concerned in the present application falls in that notification under the head : East-first along the proposed Mehrauli bye pass road and then afterwards a boundary showing the regional park as proposed in the master plan.
(4) On the basis of this notification the learned counsel for the plaintiffs has argued that the land in dispute actually does not fall under Zone No. F-15. Therefore, this is not a development area and hence Dda has no authority to interfere with the construction or carrying on any activity by the plaintiffs in this reward.
(5) Secondly, the learned counsel for the plaintiffs has urged that construction of temporary khokha with bamboo sticks would not fall under the definition of development as declined in the Act. Section 2(d) of the Act defines ‘development’ as follows :- ‘development’ with its grammatical variations means the carrying out of building, engineering, mining or other operations in, on, over or under land or the making of any material change in any building or land and includes redevelopment. Similarly a development area is defined in Clause (e) of Sec-2 of the Act as follows: ‘development area’ means any area declared to be a development area under sub-section (1) of Section 12. Another argument which has been advanced by Shri Gupta is that if the case of the defendants is that the area is a green area’ then the Dda itself has no authority to declare a green area as development area and therefore the land in question if falls in green area then the notification of 11th August, 1993 declaring it as a ‘development area’ is without jurisdiction, illegal and contrary to the power conferred by the Act on the defendants. Mr.Gupta has further argued that even otherwise on the basis of site plan submitted by him this land does not fall in Zone F-15 and, therefore, it is outside the purview of Sec.30 of the Act and notices issued during the pendency of the suit in this regard and served upon the plaintiffs is of no avail. Mr.Gupta has laid stress that no power under the Act is given to the Dda to remove an article from the plaintiffs’ property even if the use by the plaintiffs of the property is not in confirmedly with the land use prescribed under the Master Plan. Learned counsel for the plaintiffs has also argued that Dda will have jurisdiction only if there is building activity in terms of Sec.2(d) read with Section 12 of the Act, and he has staled that staking of marble or having commercial activity of selling the marble will not come in the realm of development as defined in the Act, and hence no contravention of any provision of the Act or Bye Laws.
(6) The next argument of the learned counsel for the plaintiff is that as the land use is different than development area whereas in case of latter it will be permissible under Sec.30(1)(a) of the Act to demolish the building, in case of contravention of land use no such power is given to the defendant under the Act except recourse to Section 29 of the Act and, therefore, action of the defendant in stopping the commercial activity or staking of marble is illegal. The learned counsel for the plaintiffs has urged that power, scope and jurisdiction for initiation of action by the defendants permeates from the language of Section 14 read with Sec.29(2) of the Act and subject to sanction of prosecution under Sec.49 of the Act. The main thrust of the arguments of learned counsel for the plaintiffs on the basis of the submissions made above was that legal possession of the land in question is with the plaintiff, defendants have limited power for demolition of any building or structure if that has been’constructed that too it such construction has been made in an area declared legally as a development area. But in any case the defendants had no power to stop the plaintiffs from using their own land for staking of marble stones etc. and carrying on commercial activity. Mr.Gupta has placed reliance in support of his arguments on M.K. Vasuraj Vs. Delhi Development Authority and Others 11,R (1971) 11 Delhi 21, Rohit ‘Talwar & Ors. Vs. Mcd & Ors. 49 (1993) Dlt 25 and 1983 (4) Scc 625 and urged that Dda cannot demolish the property, nor can seal the property in case of misuse as there is no unauthorised development which would mean unauthorised construction. On the basis of these arguments he has prayed that an injunction be granted to the plaintiffs in terms of the prayer made in the application as prima facie they are the owners of the land and balance of convenience is also in their favor and if the injunction is not granted the plaintiffs will suffer irreparable injury.
(7) On the hand hand, Mr.Ravinder Sethi, Senior Advocate appearing for the defendants has argued that notification dated 11.8.1973 has mentioned Zone 15 as it was Zone number as existed at the relevant time. He has argued that the notification is not in relation to a Zone but in relation to the area described in the schedule. According to him the area is 2100 acres which remains the same even today and the descriptions which have been provided in the schedule also remains the same. On behalf of the defendants certain site plan along with the affidavit dated 13th July, 1994 was filed in which it has been stated that the land subject-matter of the suits has been shown as a proposed Regional Park under the recreational land use under the Master Plan 1962. It has been stated that the zonal map under the Master Plan 1962 had the land in question adjacent to Mehrauli bye pass road and the same was included in Zone F-15. Under the Zonal Map under the Master Plan of 1962 a Zonal map F15 was published by the defendants in the year 1969 and in that area this land in depute was shown in the key plan in Zone F-15. I have seen the Key Plan and Zone F-15 does not end with Mahipal Pur Road as the road is not the dividing line but at the inter-section towards East the road is perturbing beyond the road Mahipal Pur.
(8) It is also stated in the affidavit that the area in question is again shown in the regional park under the head ‘recreational land use’ and the land in question forms part of the Southern Ridge and land has to be preserved so as to maintain ecological balance. Mr.Sethi has argued that there is a readjustment of the Zone in the Master Plan 2001 and in the present Master Plan the land has been shown in Zone ‘J’ being one of the 15 Zones comprising the entire Union Territory of Delhi. He has also stated that site plan which the plaintiff had filed in the suit is only draft zonal development plan which is still to be approed. According to the learned counsel the land which was notified to be ‘development area’, on 11.8.1973 at the relevant time fell in Zone F-15 and it still remains in the development area. He has submitted that new zones may be created, sub-divisions may be changed but it would not affect the notification as the land would still be a development area until and unless by another notification the land is denotified. Therefore, plaintiffs cannot carry on any activity except in accordance with provisions of Delhi Development Act or Rules framed there under. He laid great stress that even the plaintiffs had not pleaded any where that the land does not fall in Zone F15. He has taken me through the written statement filed by the Dda, particularly paragraph 2 of the preliminary objection in which it has been mentioned that area declared to be the ‘development area’ consists of 2100 acres and it falls in Zone F-15. In replication the only plea taken by plaintiffs is that the stand of Dda is overlapping and the issue of notification is subjudice.
(9) Repelling the contention of Mr.Gupta that the land of which land use is green, cannot be declared as development area, Mr.Sethi has argued that Section 12 of the Delhi Development Act, 1957 which is as follows provides an answer to it :- Sec.12 “(1) As soon as may be after the commencement of this Act, the Central Government may, by notification in the Official Gazette, declare any area in Delhi to be a development area for the purposes of this Act : Provided that no such declaration shall be made unless a proposal for such declaration has been referred by the Central Government to the Authority and the Municipal Corporation of Delhi for expressing their views thereon within thirty days from the date of the receipt of the reference or within such further period as the Central Government may allow and the period so specified or allowed has expired. (2) Save as otherwise provided in this Act, the Authority shall not undertake or carry out any development of land in any area which is not a development area. (3) After the commencement of this Act no development of land shall be undertaken or carried out in any area by any person or body (including a department of Government) unless, : (i) where that area is a development area, permission for such development has been obtained in writing from the Authority in accordance with the provision of this Act. (ii) where that area is an area other than a development area, approval of, or sanction for, such devedlopment has been obtained in writing from the local authority concerned or any officer or authority thereof empowered or authorised in this behalf, in accordance with provisions made by or under the law governing such authority or until such provisions have been made, in accordance with the provisions of the regulations relating to the grant of permission for dovdopment made under the Delhi (Control of Building Operations) Act, 1955 (53 of 1955), and in force immediately before the commencement of this Act : Provided that the local authority concerned may (subject to the provisions of Section 53-A) amend those regulations in their application to such area. (4) After the coming into operation of any of the plans in any area no development shall be undertaken or carried out in that area unless such development is also in accordance with such plans.
(10) The argument of the defendants is that the legislature has given power to the’ Central Government to declare any area in Delhi to he the development area for the purposes of this Act and any area would include a green area also. The Master Plan 2001 has declared this area to be used as recreational area. Recreational area has been further described at page 154 under heading Pi as Regional Park and P2 as District Park. According to the contention of learned counsel for the defendant even for the purposes of implementing the Master Plan and for developing the area in a Regional Park and a District Park as mentioned in the Master Plan the land has to be developed for that purpose and for the purposes of developing the land for the purposes of Master Plan would be a developmental activity for which the defendants are entitled to give effect to the intents and purpose of Master Plan. He has also argued that the definition of the word ‘development’ which is given in sub-sec.(d) of Sec.2 of the Act is not restricted to an engineering, mining or other building activities but includes in its fold other operations as well. At this stage it may not be necessary to go into the scope of the definition of ‘development’ as contained in subs-sec.(d) of Sec.2 of the Act. Mr.Sethi has also argued that injunction prayed for is, as a matter of fact, if granted, would be to perpetuate violation of Sec.14 of the Act which is as follows: “AFTER the coming into operation of any of the plans in a zone no person shall use or permit to be used any land or building in that /.one otherwise than in conformity with such plan : Provided that it shall be lawful to continue to use upon such terms and conditions as may be prescribed by regulations made in this behalf any Ind or building for the purpose and to the extent for and to which it is being used upon the date on which such plan comes into force.”
(11) Therefore, he has submitted that no injunction of the nature sought for by the plaintiffs may be granted in their favor. Learned counsel for the defendant has argued that in case the plaintiffs have any case in relation to the notices issued under Sec .30 of the Act they can go before the competent authority and even after the adjudication by the competent authority an appeal is provided. He has argued that when the Act itself provides a machinery for the redressal of the grievance of the plaintiff the injunction sought for by the plaintiffs cannot be granted in these proceedings. Mr.Sethi has argued that the plaintiffs have no case much less a prima facie case According to him the plaintiffs in some of the suits have come in occupation and possession of land only in 1991 and in all suits the commercial activities have been started in 1991-92, whereas the land was notified under Sections 4 and 6 of the Land Acquisition Act in 1965. In .this context he submitted that in Suits Nos.101/03, 103/93, 104/93 and 106/93 Sec.4 Notification was issued on 23.1.1965 and Sec.6 Notification was issued on 22.12.1966 and in view of the writ petition no.584 of 1984 filed by the land owners possession was not taken. In Suits Nos.241/93 and 102/93 Notifications under Sec.4 of the land Acquisition Act were issued on 13th November, 1959 and under Sec.6 on 16th May 1966. In relation to all these suits even notification under Sec- 22(1) of the Act was issued on 28th July, 1980 which can only be issued after taking possession from the parties concerned. He has also stated that in relation to Suits Nos.1-09/93, 105/93 and 100/93 notifications under Secs.4 and 6 of the Land Acquisition Act was quashed vide order dated 8th November,1990. Another argument advanced by learned counsel for the defendant is that though there is restriction of transfer of land under Sec.4 of the Delhi Land (Restriction on Transfer) Act, 1972 which, inter alia, provides that no person shall except with the previous permission in writing of the competent authority transfer or purport to transfer or sale, mortgage, gift, lease or otherwise any land or part thereof situated in the Union Territory of Delhi which is proposed to be acquired in connection with the scheme and in relation to which a declaration to the effect that such land or part thereof is needed for a public purpose having been made by the Central Government under Sec.6 of the Land Acquisition Act, 1894. Drawing support from Sec.4 of the aforesaid Act the defendant has urged that barring three cases in all other suits notice under Sec.6 of the Land Acquisition Act had been issued by the Central Government. On the basis of the aforesaid facts, learned counsel for the defendants has argued that neither the tenants nor the so-called owners are entitled to any injunction. He further argued that no application under Sec.12 of the Act has been filed by the plaintiff for taking perm,ission for use in terms of sub-secs.3 (i) and (ii) of Sec.12 of the Delhi Development Act. It has also been argued by the learned counsel for the defendants that balance of convenience is also in not granting an injunction as this Court has to weigh convenience of an individual vis-a-vis public interest he has quoted extensively from the Master Plan WHERE in the natural features lof Delhi have to be protected by protecting the Southern Ridge in which disputed land falls. On the other hand, the plaintiffs have argued that after coming into force the Master Plan for the year 2001 no fresh notification had been issued and therefore earlier notification dated 11th August, 1973 had lapsed. He has argued that the same has become non-est as soon as the new Master Plan has come into force. He has further a argued that in relation to the contravention of the provisions of Delhi Land (Restriction on Transfer) Act the penalty is prescribed in Sec. 9 of the said Act and if any transfer has been made which is inconsistent to the provisions of the said Act defendant has no authority to proceed but the Competent Authority under Delhi land (Restriction on Transfer) Act would have jurisdiction to initiate a claim in terms of Sec-9 of the Act. He has also argued that defendant cannot restrain the plaintiff from peaceful enjoyment of his own property.
(12) I have heard in detail respective arguments advanced by learned counsel for all the parties and have carefully gone through the records of the case.
(13) At this stage I need not go into all the points raised by the respective counsel for the parties. Needless to mention that on certain aspects evidence has to be led and respective parties have to prove its case on merits. Here I am concerned the grant of injunction in terms of the prayer made by the plaintiffs in the applications till the pendency of the suit. It is pertinent to note the language of Rule (1) of Order 39 of the Code of Civil Procedure which is as follows :- "WHERE in any suit it is proved by affidavit or otherwise- (a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or " (14) Order 39 Rule 2 sub-rule (2) lays down also that the Court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit. (15) The question before me is as to what is the danger to the property of its being wasted or damaged by the defendant. On 10.4.198I in relation to the land in question in Cw 701 /81 a Division Bench of this Court made the following order :- "ORDER of status quo given already will continue in the meanwhile." On behalf of the respondents it is stated that in some of the matters possession has already been taken over by them which is, of course, naturally denied by the petitioners. Without entering into this controversy, we are only directing the status quo as obtaining between the parties regarding possession to continue in the meanwhile. Liberty is, however, given to the parties to move this Court if circumstances so warrant."
(16) PHOTO-COPY of this order was filed by the plaintiffs in Suit Nos.101of 1993. 103/93, 104/93 who are claiming to be in actual physical possession of the said land and who have filed the photo copy of the aforesaid order in C.W. 701 /81 in which defendant Dda was restrained from taking possession and this Court ordered for maintain status quo, claimed to have transferred their lands measuring approximately 1250 sq.yds. on monthly tenancy in 1991 or in 1992. In Suit No.104/93 in the year 1989 under agreement dated 1.7.1989 on a monthly rent of Rs.3500.00 for carrying on business of storage, sale and supply of marbles and other stones and allied items as mentioned in para 3 of the plaint. How the land which is under dispute and the possession of the plaintiffs was only on account of the stay order granted by this Court, in view of the specific order of maintaining status quo, how and why the land has been transferred on lease or otherwise. In one of the suits being Suit No.105/93 the plaintiff has filed a document purporting to be the sale deed executed by Madan Lal Mittal, Bhim Sain Mittal, Bhagirath Lal Mittal, Co bind Lal Mittal and Smt. Maya Devi in favor of Praveen Kumar Jaju who is plaintiff in the Suit. It is interesting to read the sale agreement at page 3 of the sale deed. The land which has been sold .has been described as ‘agricultural land’ and in para 8 of the’ said sale-deed it has been specifically stated that the said land is agricultural (and and shall be used for agricultural purposes. Plaintiff no.1 has purchased the land which is agricultural and has stated so in the sale deed that the said land will be used for agriculture purposes. However, in the plaint plaintiff no.1 has stated that he had given this land approximately l000 sq. yds. on 21.10.1992 to plaintiff no.2 Ashok Kumar Jaju. Plaintiff no.1 was aware that land is an agriculture one, how and why he entered into a rent agreement for non-agriculture purpose and if he has entered for non agriculture purpose and some authority established under law challenges or intends to initiate an action for the use of such land which is being used in violation of the statutory provisions whether court should grant injunction in such cases. Conscious of the fact that any expression of opinion would effect the trial of the case I am only concerned with prima.facie view keeping in view the pleadings and documents before me to answer this question and nothing said will be an expression of opinion on the merits of the case. In any case at this stage I have to see whether property of the plaintiffs is in danger of bring wasted or not. Learned counsel for Dda has made a statement that plaintiffs shall be dispossessed from their land in question only in accordance with law. Whether staking of marble carrying on activities of commercial nature on agricultural land which plaintiffs knowingly are carrying on in derogation of Master Plan and land use cannot be allowed to by this Court under Order 39 Rule 1. There is no force in the arguments advanced by learned counsel for the plaintiffs that the defendants at best for using the disputed land for a purpose other than what has been provided in the Master Plan, can take recourse only to the provisions regarding prosecution and penalty as provided under the Act. If this argument is taken to its logical conclusion it would amount to making the provision of the Master Plan and Section 14 of the Act. redundant as in no case the defendants would be in a position to slop the misuse because this interpretation would lead to allow the misuse to continue except to file prosecution in a court of law. The intention of the Parliament was not to make defendants a toothless authority and a silent spectator to witness activities in areas not conforming to the land use as provided in the Master Plan.
(17) Even otherwise, I must point out that Parliament enacted the Delhi Development Act, 1957 and under the provisions of this Act Master Plan of 2001 was approved by the Central Government. Ministry of Urban Development vide its notification issued on 1.8.1990 in the preamble of the Master Plan for Delhi 21)01 in para 2 has shown the land in dispute on the Southern Ridge. It has been stated :- "ECOLOGICALBALANCE To Be MAINTAINED. Delhi Has Two Distinct Natural FEATURES- The Ridge Which Is The Rocky Outcrop Of Aravali Hills And The River YAMUNA. Some Parts Of The Ridge Have Been Erased In The Central City AREA. No Further Infringements Of The Ridge Is To Be PERMITTED; It Should Be Maintained In Its Pristine GLORY." At page 140 of the aforesaid notification it has been mentioned as follows :- "NATURAL Features Conversation of major natural features in a settlement is of almost importance to sustain the natural eco-system. Two major natural features in Delhi are the Ridge and the Yamuna River. Ridge in Delhi is declined as rocky out-crop of Aravali ranges stretching from the University in the North of the union Territory boundary to the South and beyond. The Central ridge area which is part of New Delhio, was planned as its integral part at the time of development of New Delhi Capital. This area was left in its pristine glory by planting only with the indigenous species of trees like kikar and babul. The plan in 1962 identimed, a future stretch of south central ridge near Mehrauli. Though parts of ridge in Delhi have been erased out, total ridge area now available is 7,777 hectares approx. divided as follows : Northern Ridge 87ha. Central Ridge . 854 ha. South Central Ridge (Mehrauli) 626 ha. Southern Ridge 6200 ha. The ridge thus identified should be conserved with utmost care and should be afforested with indigenous species with minimum of artificial landscape."
(18) In the back-drop of the intention of the legislature which is manifest from the adoption of Master Plan for Delhi 2001 admittedly the area in dispute as per the Master Plan 2001 falls in recreational /,one of which the land use is Regional Park and District Park as defined in Master Plan at page 154 paragraphs P-1 and P-2. A notification declaring the area in dispute measuring 2100 acres the boundary of which has been shown in the notification issued in 1973 pursuant to which a plan as referred to above had been prepared in the year 1969 showing the land in dispute falling in Zone F-15 in the Master Plan 1962 which is zone ‘J’ in the Master Plan of 2001, in view of these facts prima facie no injunction can be granted in relation to the said land allowing the plaintiff to continue to carry on its activity inconsistent with the provisions of Master Plan, and land use mentioned in the said plan. If injunction is granted that will make Section 14 of the Delhi Development Act nugatory which prohibits that no person shall use or permit to be used any land or building in a Zone otherwise then in confirmedly with such plan. Plaintiffs have failed to establish that any property is in danger of being wasted. In view of these conclusions, I would not go into the controversy as raised by the learned counsel for the plaintiffs regarding the meaning and scope of building in relation to the judgment cited before me in case of Rohit Talwar & Others. (supra) and other arguments.
(19) In view of above discussion, I hold that plaintiffs have failed to establish a prima facie case in their favor. Keeping in view the tremendous growth of Delhi as a mag metropolis, paucity of land, heavy pressure on infra-structural civic facilities, over- crowding, conjested, heavy load of traffic on the roads it is high time when the law enforcing agencies as well as citizens should make a concerted effort to make Delhi a city with less pollution, if not totally free from pollution and preserve its natural habitat and ecology and Court cannot come in aid of a party to thwart the powers of statutory authority like defendants in achieving these objects. Learned counsel for the defendant, during the course of arguments, has made a statement that plaintiffs shall not be dispossessed from the land in question except in accordance with law. In view of above discussion, I hold that plaintiffs have failed to establish prima facie case in their favor. Other prayers of the applicants except regarding possession, in view of the above observations, are untenable and the same are dismissed. In the light of the aforesaid reasons, the applications are dismissed with no order as to costs.
(20) Let the parties appear before the Joint Registrar on 14th September, 1994 for admission and/or denial of documents and after the needful is done, the matter be listed before Court for framing of issues.