Delhi District Court
Through His Son/General Attorney vs South Delhi Municipal Corporation on 25 August, 2020
IN THE COURT OF MR. DHARMESH SHARMA
DISTRICT & SESSIONS JUDGE : WEST DISTRICT
TIS HAZARI COURTS : DELHI
RCA No. 60960/2016 (Old No. 15/2013)
CNR No. DLWT01-000919-2013
Sh. Roop Chand Yadav
S/o Late Sh. Man Singh,
R/o WZ-220/2A/1, J-Block,
Vishnu Garden, New Delhi
Through his son/General Attorney
Sh. Chander Yadav . . . . . . Appellant
Versus
1. South Delhi Municipal Corporation
West District, Civic Centre
Minto Road, New Delhi-110002
Through its Commissioner.
2. Shri Nazruddin
S/o Hazi Abdul Majid
R/o A-4, 3A Block,
Vishnu Garden, New Delhi
3. Shri S.K. Gupta
Asstt. Engineer (West Zone)
South Delhi Municipal Corporation,
West District, Civic Centre,
Minto Road, New Delhi-110002
4. Shri A.K. Meena,
Executive Engineer (West Zone)
South Delhi Municipal Corporation,
West District, Civic Centre,
Minto Road, New Delhi-110002 . . . . . . Respondents.
RCA Nos. 60960/16 & 60733/16 Page 1 of 29
Date of Institution : 22.01.2013
Date of hearing arguments : 10.08.2020
Date of judgment : 25.08.2020
AND
RCA No. 60733/2016 (Old No. 16/2013)
CNR No. DLWT01-000109-2013
Shri Nazruddin
S/o Mr. Hazi Abdul Majid
R/o A-4, 3A Block,
Vishnu Garden, New Delhi . . . . . . Appellant
Versus
1. South Delhi Municipal Corporation
Civic Centre, Minto Road,
New Delhi-110002
(Service to be effected through through its Commissioner)
2. Sh. Roop Chand Yadav
S/o Late Sh. Man Singh,
R/o WZ-220/2A/1, J-Block,
Vishnu Garden, New Delhi . . . . . . Respondents.
Date of Institution : 28.01.2013
Date of hearing arguments : 10.08.2020
Date of judgment : 25.08.2020
Appearances:
Sh. Bhagwati Prasad Gupta along-with Sh. Rajesh Gupta, Advocates
for the appellant Roop Chand Yadav in RCA No. 60960/16 (15/2013)
who is also respondent no. 2 in the second appeal
Sh. Dalip Rastogi, Advocate for appellant Nazruddin in RCA
No.60733/16 (Old No.16/2013), who is also respondent no. 2 in the first
appeal.
RCA Nos. 60960/16 & 60733/16 Page 2 of 29
Sh. Shashi Kant Gupta, Advocate for respondent No.1 SDMC in both
appeals and for the officials respondent no. 3 & 4 in the above referred
first appeal
JUDGMENT
1. This common judgment shall decide the aforesaid two appeals filed by the appellant Roop Chand Yadav bearing RCA No. 60960/16 (Old No. 15/2013) and the appellant Nazruddin bearing RCA No. 60733/16 (Old No. 16/2013) under Section 347D read with Section 347-B and Section 347-C of the Delhi Municipal Corporation Act, 1957 (hereinafter referred to as 'the DMC Act'), both challenging an order dated 15.01.2013 passed by the Court of Sh. Ashwani Sarpal, Ld. Appellate Tribunal, MCD (hereinafter referred to as the 'Ld. ATMCD') on a Miscellaneous Application No. 98/2012 in Appeal No. 471/AT/MCD/ 2012, which was filed by the appellant Nazruddin. The broad facts and circumstances brought out in the aforesaid two appeals are common to the parties raise 'common questions of law and facts', thus the same can be conveniently disposed of together. The appeal bearing RCA No.60960/16 shall be main case for the purpose of disposal of the two appeals.
2. The case of the appellant Roop Chand Yadav in RCA No. 60960/16 is that he is absolute and exclusive owner of the property bearing No. WZ-220/2A/1, J-Block, Village Khyala, Vishnu Garden, New Delhi, (hereinafter referred as the "subject property") which appeal has been filed by him through his son and General Attorney Sh. Chander Yadav, who is competent in such capacity vide SPA dated 04.10.2012. It is stated that appellant Nazruddin in other appeal RCA Nos. 60960/16 & 60733/16 Page 3 of 29 bearing RCA No.60733/16 (Old NO. 16/2013) arising out of appeal No. 471/AT/MCD is a tenant under him in respect of an area of 166 Sq. Metres equivalent to 198 Sq. Yards, out of total land/property of the appellant Roop Chand Yadav measuring an area of 621 Q. Metres (which incidentally during the proceedings is stated to be 627 Sq. Metres. It is admitted case that the officials of South Delhi Municipal Corporation (hereinafter referred to as the 'SDMC') inspected the aforesaid property on 11.11.2011 and found that the same was being used for the purpose of stocking and selling of building material contrary to the prescribed user under the Master Plan-2021. It is the case of the appellant Roop Chand Yadav that a notice under Section 345-A of the DMC Act No. D-147/Misc./EE(B)-I/WZ/11 dated 02.12.2011 was served upon him alleging that a portion of the aforesaid premises/property is being used under the name and style of M/s. Building Material in violation of Master Plan-2021/Zonal Plan and in exercise of powers vested under Section 345A read with Section 491 of DMC Act and Rules made there-under. The owner / occupier was directed to "clear the set backs from any unauthorized constructions / marble stone stakes/any material and make it free for parking purposes and stop misuse of set backs and bring the premises with the permitted use as per Master Plan-2021 within 48 hours thereof and file an affidavit in the prescribed format, failing which the property would be sealed."
3. It is stated that a reply was given by the appellant Roop Chand Yadav on 23.12.2011 with the Deputy Commissioner of the RCA Nos. 60960/16 & 60733/16 Page 4 of 29 SDMC, whereby he sought 10 days time to shift the building material like Bricks, concrete, shuttering material etc. to some other safer place / alternate place. It is the case of appellant Roop Chand Yadav that on 01.02.2012 JE (Bldg.) put up the file for issuance of sealing order under Section 345-A read with Section 491 of the DMC Act, with the following report:
"This is a case of misuse in property No. WZ-220/2A/1, J Block, Vishnu Garden, Village Khyala, New Delhi. It has been found that the misuse in the name and style of M/s. Building Material is running at the said property at the instance of Chaudhary Roop Chand owner/occupier of the said property which is in violation of Section 347 of DMC Act and MPD-2021."
4. Thereafter, the matter was processed at the end of respondent No.1 SDMC and it is the case of the appellant Roop Chand Yadav that he was advised to get the subject property registered with the respondent No.1 for commercial user, and while he was contemplating making payment for such registration, on 22.08.2012 a part of the subject property measuring 627 Sq. Yards, which is marked part 'A' in the site plan filed by the SDMC was sealed including 166 Sq. Metres of portion claimed by Sh. Nazruddin, as tenant under him. Further, on 27.08.2012 remaining portion of property No. WZ- 220/2A/1, J-Block, Village Khayala, Vishnu Garden, New Delhi viz. Part 'B' and Part 'C' measuring about 215 Sq. Metres and 200 Sq. Metres respectively about which there is no dispute raised in the present appeals were also sealed.
RCA Nos. 60960/16 & 60733/16 Page 5 of 295. The said action on the part of respondent No.1 SDMC was challenged by the appellant Nazruddin before the Ld. ATMCD bearing appeal No. 471/2012 against sealing order in respect of portion sealed on 22.08.2012 along-with an application for temporary de-sealing of the same. It is the case of the appellant Roop Chand Yadav that Nazruddin specifically claimed that he was tenant in respect of land measuring 166 Sq. Metres falling in part 'A' as per site plan filed by the respondent No.1 SDMC and he alleged in his appeal that the entire proceedings had been initiated by the SDMC at the instance of Roop Chand Yadav with an intention to get the property forcibly vacated by adopting dubious measures. It is common position that the said appeal of the appellant Nazruddin bearing No. 471/2012 came up for hearing before the Ld. ATMCD on 25.09.2012, on which date statement of Nazruddin was recorded on Oath which was countersigned by his Counsel, which goes as under:
"I had deposited Rs. 71,000/- only against the conversion charges and other charges on 22.08.2012 with the MCD and undertake to pay the remaining charges as demanded within seven days. I am occupying only 166 sq. meter area of the plot No. J-220/2A-1, J Block, Khyala Road, Vishnu Garden, New Delhi.
Thereupon the Hon'ble Court passed the following order dated 25.09.2012 in the appeal No. 471/12:
The appellant with Counsel Sh. Dalip Rastogi, Advocate. Sh. S.K. Gupta, AE (B) on behalf of the respondent. It is stated by the AE (B) that the sealing order was passed only on the ground that the appellant and other occupants were using the property in question for commercial purposes without depositing conversion charges, parking charges etc. He admitted that the property in question is situated on the commercial road.RCA Nos. 60960/16 & 60733/16 Page 6 of 29
Appellant is only a tenant in a part portion of property and he has deposited the conversion charges and other charges amounting to Rs. 71,000/- only on 22.08.2012. The appellant is in possession of 166 sq. meter area as stated in respect of the big plot/building. He is ready to pay the remaining conversion charges or other charges qua his portion if the same is desealed. The statement of AE (B) and the appellant recorded to the above effect. The present appeal can be disposed off by giving certain directions to both the parties as under.....
1. The portion of the property No. WZ-220/2A-1, J Block, Vishnu Garden, Khyala Road, New Delhi which his in possession of the appellant only be desealed on 26.09.2012 at 5:00 PM.
2. The remaining portion, which is not concerned with the appellant, shall remain sealed as it is unless specially ordered by the Tribunal or any other Court.
3. The MCD within seven days shall calculate the area in possession of the appellant and shall raise the demand in writing regarding conversion charges, parking charges, penalties, interest and other charges etc. and shall serve that demand letter upon the appellant as well as the owner of the property.
4. The appellant shall within seven days of the receipt of the demand letter shall pay the amount calculated by the MCD after giving adjustment of Rs.71,000/- already paid on 22.08.2012.
5. In case, the appellant fails to pay the balance amount according to the demand raised by the MCD within seven days as granted above then the MCD shall reseal the portion belonging to the appellant and it shall remain sealed till the full demanded amount is paid.
It is clarified again that the above concession given is only in respect of the portion belonging to the appellant and the de- sealing shall not take place of while of the property. With these observation, the appeal is disposed off. Appeal file be consigned to record room. Copy of the order be given to the appellant."
6. The grievance of the appellant Roop Chand Yadav in RCA No. 60960/16 (Old No. 15/2013) is that in the said appeal Nazruddin did not file any site plan regarding the portion 'A' that had been sealed by the SDMC on 22.08.2012; nor he was issued with notice of the said RCA Nos. 60960/16 & 60733/16 Page 7 of 29 appeal and he came to know about such orders on 28.09.2012 when the officials of SDMC purportedly de-sealed the premises on 26.09.2012 by de-sealing 166 Sq. Metres of area, out of portion Marked 'A' in the site plan of the SDMC while remaining portion of Mark 'A' remained sealed. It is stated that neither the SDMC thereafter collected any amount in respect of portion occupied by Nazruddin nor Nazruddin deposited any other amount except for Rs. 71,000/- as conversion charges beyond an area of 166 Sq. Metres of land / area in his possession comprised in the subject property. It is stated by the appellant Roop Chand Yadav that on 03.10.2012 he filed a miscellaneous application No. 98/2012 in the appeal of Nazruddin bearing No. 471/2012 filing several documents in support of his claim of ownership of the entire subject property, along-with site plan of the de- sealed portion of 166 Sq. Metres in green colour that was in possession of Nazruddin and also of portion 461 Sq. Metres in his possession that remained to be de-sealed in red colour.
7. It is stated that on moving of the said application, the appellant Roop Chand Yadav was ordered to deposit a sum of Rs. 2 lacs within two days and notice was issued to the SDMC for 08.10.2012 and AD (Bldg.) was asked to make a demand in writing in respect of property / land in occupation of the applicant Roop chand; and that the said amount of Rs. 2 lacs was deposited vide receipt dated 05.10.2012 and further amount of Rs. 6,46,285/- was voluntarily deposited by him on 15.10.2012. The matter then came up for hearing on the said miscellaneous application No. 98/2012 in appeal No. 471/2012 on RCA Nos. 60960/16 & 60733/16 Page 8 of 29 08.10.2012, on which date the following order was passed:
"Present: Applicant with counsel Ms. Jaya Goyal, Advocate.
Sh. S.K. Gupta on behalf of respondent MCD.
Report filed by the AE(B). Copy given to the applicant who is only concerned with area of 461 sq. meter in the plot. Applicant has already deposited Rs. 2 lacs with the MCD as per last order. According to the report, five persons have applied for registration of the plot measuring 1021 sq. mt. Out of which Nazruddin had claimed possession of 166 sq. meter. One Chandra Shekhar who also applied for registration is the son of applicant Roop Chand whereas Riazuddin and Islamuddin are reported to be the son of Nazruddin.
Let notice be issued to Riazuddin, Nazruddin and Islamuddin to appear for sorting out the dispute and the the applicant to produce his brother also who is reported to be in possession of remaining portion of the plot. Chander Shekhar is present in the court today. The AE (B) is directed to give the assessment of the amount in respect of the Plot measuring 166 sq. meter pertaining to Nazruddin as well as 461 sq. meter pertaining to applicant Roop Chand Yadav on 16.10.12. The conversion slip, application etc. deposited by different persons be also produced."
8. It is alleged by the appellant Roop Chand Yadav that in the interregnum some sort of trading took place between Nazruddin and the officials of the SDMC and a report was filed before the ld. District Judge on 26.11.2012 that on 25.09.2012 the whole of the portion 'A' in the subject property was de-sealed and the possession thereof was handed over to Nazruddin. The matter came up on 16.10.2012 before the Ld. ATMCD and the following order was passed:
"Present: Applicant Sh. Roop Chand Yadav with Counsel Sh.
N.N. Aggarwal and Ms. Jaya Goel, advocates alongwith Sh. Chander Shekhar son of Sh. Roop Chand.
Sh. Dilip Rastogi, advocate with Sh. Nazruddin and his both sons Riyazuddin and Islamuddin in person.RCA Nos. 60960/16 & 60733/16 Page 9 of 29
Sh. Mahipal Singh Drall, Counsel for Sh. Surender Yadav s/o Late Sh. Jawahar Singh in person.
Sh. Naresh Kumar, Counsel for respondent alongwith Sh. S.K. Gupta, AE (B) in person.
AE(B) has produced the original receipt book. Let the photocopies of the relevant pages be placed on record According to the AE(B), the different persons applied for registration of the property in their individual names in 2008 under self registration scheme and some more time is required to find out the copies of the application forms.
AE (B) stated the plot in question consists of approximately 1021 Sq. Meter and the conversion charges qua whole of the plot has been received. However, the parking charges are received approximately for about 400 Sq. meter area. According to the AE(B), after receipt of the parking charges and interest, penalties etc. the property can be desealed.
Nazaruddin filed an appeal bearing No. 471/12 and claimed in possession of 166 Sq. Meter area of plot in question. He deposited conversion and parking charges as per count directions and his appeal was disposed off on 25.09.2012. According to the Nazaruddin, present in the court he is in possession of about 600 sq. meter area and alleging that the appellant Roop Chand Yadav is not occupying any area. He wants to contest the application of the applicant Roop Chand so let the copy of the application be given to him and he can file reply of the same on next date of hearing. He has to also clarify on which basis he earlier claimed occupying 166 sq. meter area in A.No. 471/12 as well as in the previous deposit receipts and how he is now taking a different stands. He is warned that in case his version is found wrong then he can be prosecuted for perjury as well as his property can be resealed again.
An application has been filed on behalf of Laxman Singh for a similar relief for desealing of a portion of 209 sq. meter as shown yellow in the site plan.
On behalf of Sh. Surender Yadav, son of Sh. Jawahar Singh time is also sought to move similar application.
A site plan with different colours has been annexed with the application of Laxman Singh and the property in question consisting of 1021 sq. meter is shown in possession of four persons. So far the yellow and blue portions in possessions of Laxman Singh and Late Sh. Jawahar Singh is concerned consisting of 209 sq. meter, there is no dispute. However, Roop Chand applicant and Nazaruddin are now disputing the RCA Nos. 60960/16 & 60733/16 Page 10 of 29 portion relating to 461 Sq. meter as shown in red colour. In respect of the green colour portion of 166 sq. meter in possession of Nazaruddin, there is no dispute. However, Nazaruddin is claiming that he is in possession of the portion of the red colour also and the Roop Chand Yadav has no concern with it. Thus there is a dispute about the respondent colour portion to whom it belongs to.
AE(B) stated that Riyazuddin had deposited Rs. 37,000/- in respect of 40 sq. meter area and Islamuddin deposited Rs. 40,000/- in respect of 45 sq. meter area recently. According to the AE(B), MCD is concerned with the conversion and parking charges over the whole plot and is not concerned with the internal disputes of the occupants. Laxman Singh and Surender Yadav are ready to deposit the remaining parking charges qua the whole of the plot in question without prejudice to the rights and contentions.
It is permitted to Laxman Singh and Surender Yadav to deposit the remaining parking charges qua whole of the plot within seven days and it shall be without prejudice to their rights and contentions as well as without prejudice to the rights and contentions of other parties to claim from each other because the MCD is concerned with its money and is not concerned who pays the same.
The request made by the Counsel for applicant to grant status quo is declined because at this stage, it is not clear who is in possession of which particular portion. There is a dispute between Roop Chand and Nazaruddin over the land and both are denying the possession of each other. Unless a particular situation is clear till then no status quo can be granted. Otherwise also, the dispute of title and possession is to be finally determined by the civil court and not by this court.
Counsel for the applicant also requested that AE(B) be asked to clarify how much area was sealed and how much it was desealed and what portion was handed over to Nazaruddin after desealing under the orders of the Tribunal dated 25.09.2012 is declined at this stage. This request may be taken into consideration at later stage after the reply of the application of Roop Chand is given by Nazaruddin.
Let the Counsel for the appellant to supply the copy of the application to the Counsel for Nazaruddin in his chamber by tomorrow and put up this matter on 05.11.2012 for further proceedings."RCA Nos. 60960/16 & 60733/16 Page 11 of 29
9. It is the case of the appellant Roop Chand Yadav that since an attempt was being made by Nazruddin to go beyond his statement recorded on 25.09.2012 about his claim only with regard to 166 Sq. Metres extending it to whole of the subject property, a request was made by him to the Ld. ATMCD to maintain status quo but the said prayer was not allowed. It is further the grievance of the appellant Roop Chand Yadav that Ld. ATMCD erroneously rejected the prayer of the appellant to call for the report from the AE (Bldg.) SDMC as to how much area was initially sealed and was later on de-sealed in the terms of order dated 25.09.2012. Aggrieved thereof, the appellant Roop Chand Yadav filed RCA no. 42/2012 , which matter came for hearing up before Sh. O.P. Gupta, the then Ld. DJ & ASJ Incharge (West)/ARCT:
Delhi on 09.11.2012, on which date the following order was passed:
"This is a fresh appeal u/s 347(D) of the Delhi Municipal Corporation Act against order dated 16.10.2012 passed by Ld. Appellate Tribunal, MCD. Be checked and registered.
Present: Sh. N.N. Aggarwal alongwith Jaya Goel and Ms. Nagina Jain, Adv. Counsel for the appellant.
The factual matrix is that to start with Nazruddin filed an appeal before Ld. Appellate Tribunal MCD which was registered as number 471/12 in the appeal. In that appeal he claimed possession over 166 sq. metre as shown green in the site plan. The same was allowed by Ld. Appellate Tribunal on 25.9.2012. Now the grievance of the appellant is that under the garb of the said order respondent de-sealed said portion alongwith 461 sq. mts. shown red in the site plan. The prayer of the appellant to clarify how much area was sealed and how much was de-sealed and what portion was handed over to Nazuruddin after de-sealing under orders dated 25.9.2012 was declined at the stage of impugned order.
The Counsel for the appellant relied upon decision in writ petition (Civil) 7089/2007 title as Guljar Ahmed Vs MCD decided RCA Nos. 60960/16 & 60733/16 Page 12 of 29 on 25.2.2008 in which our own Hon'ble High Court held that de- sealing of the premises shall not be done until and unless rights of parties and disputes are not determined in appropriate forum.
Issue notice to the respondent directing it to file a report as to how much area was sold and how much was de-sealed and what portion was handed over to Nazruddin under orders dated 25.09.2012.
Notice be issued on PF and RC for 26.11.2012. Dasti service allowed."
10. In compliance to said directions, status report was filed by the SDMC on 26.11.2012, the gist of which is as under:
"In this respect, it is submitted that property no. J-220/2A/I, Vishnu Garden, New Delhi was sealed on 22.8.2012 and 27.8.2012. The portion marked A was sealed on 22.8.2012 whereas rest of the portion marked B and C was sealed on 27.8.2012.
It is further submitted that the portion marked A was de- sealed on 26.9.2012 and the possession was handed over to Shri Naziruddin in appeal no.471/12 pending before ATMCD on 3.12.2012. Copy of the site plan showing the portion 'ABC' is attached herewith as Annexure A.
11. It is stated that since the aforesaid report dated 26.11.2012 created patent anomalies, another order was passed by the then Ld. DJ & ASJ Incharge (West)/ ARCT: Delhi dated 26.11.2012 directing the respondent No.1 SDMC to conduct a joint inspection along-with the appellant Roop Chand Yadav and respondent No.2 Nazruddin in RCA No.42/12 to ascertain the identity of the 166 Sq. Metres of land after serving notice upon him. Accordingly, a joint inspection was conducted by the officials of the SDMC in the presence of appellant Roop Chand Yadav and also respondent No.2 Nazruddin and a report dated 11.12.2012 was filed, the gist of which is as under:
"In this respect, it is submitted that joint inspection was conducted on 30.11.2012 in the presence of Shri Naziruddin RCA Nos. 60960/16 & 60733/16 Page 13 of 29 and Shri Chander Sheikhar son of Shri Roop Chand, of property no. J-220/2A/I, Vishnu Garden, New Delhi. During inspection, both the parties submitted their plan of the site in question. The statement of Shri Naziruddin and application of Shri Chander Sheikhar alongwith site plan are attached herewith as Annexure A & B respectively.
It is further submitted that both the parties disputed the correctness of the identification of the site in question and submitted their site plan as mentioned above. Therefore under the circumstances mentioned herein above identity of 166 sq. mtr. could not be ascertained. It is further submitted that the site plan in respect of the impugned site has already been placed on record alongwith the status report filed on 26.11.2012. It is pertinent to mention here that portion marked B and C has also been de-sealed as per direction of Hon'ble Appellate Tribunal MCD dated 3.12.2012.
12. The appellant Roop Chand Yadav then filed an application under Section 347-C(5) of the DMC Act for initiating contempt proceedings against the officials of the SDMC, who are arrayed as respondent Nos. 2 to 4 for violation of order dated 25.09.2012, as apparently instead of de-sealing 166 Sq. Metres of area, whole of the portion 'A' of the subject property comprising 461 Sq. Metres belonging to him had been unlawfully handed over to Nazruddin. The grievance of the appellant Roop Chand Yadav is that the said miscellaneous application NO. 98/2012 as well as contempt application came to be heard by the Ld. ATMCD, which vide impugned order dated 15.01.2013 dismissed the same inter alia holding that although the appellant Nazruddin has claimed himself to be tenant in the subject property and never claimed any ownership rights over the same, the applicant Roop Chand Yadav miserably failed to demonstrate that on the date when the property was sealed, he was in possession of the disputed area. Referring to the various documents including the photographs placed RCA Nos. 60960/16 & 60733/16 Page 14 of 29 on the record and the pleadings by the parties, it was observed that entire property was in actual physical possession and occupation of the appellant Nazruddin and it was observed that it was not the domain of the Ld. ATMCD to give any finding that such possession or occupation of the subject property was legal or illegal. Ld. ATMCD opined that if the applicant Roop Chand Yadav in Misc. Application No. 98/2012 had any grievance with regard to the unauthorized occupation of his land by the appellant Nazruddin in Appeal No. 471/AT/MCD, then he was at liberty to proceed against him before the appropriate forum. The impugned order reads that reliance was placed by the ld. Counsel for the applicant Roop Chand Yadav on a decision in Gulzar Ahmad v. Municipal Corporation of Delhi, MANU/DE/2137/2008, which was distinguished by the Ld. ATMCD. It would be expedient to refer to the operating portion of the directions, which goes as under :
"In paragraph no. 39 of Gulzar Ahmed's judgment cited above, High Court had observed that;
"Even if it could be held that the MCD could effect de-sealing in favour of a person who was in possession at the time of sealing, the instant case, does not fall under even such category in view of the mutually contradictory pleas set up by the respondent no.3."
Here in the present matter, while taking into consideration of the above observations of the Hon'ble High Court as well as keeping in view the fact that appellant was in possession of the entire subject property at the time of sealing which was returned to him, so there exist no ground to reseal the same even if this Tribunal had passed the directions only 166 sq. meter only. MCD officials were justified to deseal the entire area as the particular 166 sq. meter could not be identified or segregated from the entire portion. Maximum they were negligent in not seeking clarifications from this Tribunal but certainly cannot be held liable for any contempt. No question of resealing of the subject property arises again. Applicant can approach the civil RCA Nos. 60960/16 & 60733/16 Page 15 of 29 court of recovery of the subject property which is beyond the 166 sq. meter and is under unauthorized and illegal possession of the appellant but certainly this Tribunal cannot order him to return the same as at the time of sealing it was not in possession of the applicant.
Keeping in view the fact that applicant has come to this Tribunal with wrong facts and false submissions that he was in possession of the part of the subject property at the time of sealing and wrongly prayed for desealing of the same, I leave at the discretion of the MCD either to return or not to return sum of Rs. 2 lakhs deposited by him as per his own undertaking. Hence contempt application is dismissed. This misc. file be attached with the main file no. 417/2012 and be consigned to record room.
13. Both the applicant/appellant Roop Chand Yadav in RCA No. 60960/16 and appellant Nazrudin in RCA No. 60733/16 are up in arms against the said order dated 15.01.2013.
GROUNDS OF APPEAL
14. The appellant Roop Chand Yadav in the present appeal has assailed the impugned order inter alia on the ground that Ld. ATMCD failed to consider the admissions made by Nazruddin before the Court on 25.09.2012 claiming tenancy and possession of property measuring 166 Sq. Metres with regard to which only Rs. 71,000/- was deposited towards conversion charges while ignoring the fact that appellant Roop Chand had deposited Rs. 8,46,285/- by 15.10.2012 for the remaining 461 Sq. mts; and that the ld. Tribunal failed to appreciate that Nazruddin in an unscrupulous manner and in connivance with the officials of the SDMC had been able to occupy the entire piece of land; and that the Ld. ATMCD wrongfully observed that the applicant Roop Chand Yadav had failed to place on the record any documentary proof RCA Nos. 60960/16 & 60733/16 Page 16 of 29 to establish that he was in actual physical possession of the disputed property, ignoring the fact that he was issued a notice by the SDMC dated 02.12.2011; and that the Ld. ATMCD failed to appreciate that no document had been filed by the appellant Nazruddin in appeal bearing No. 471/AT/MCD/2012 in the nature of rent deed and/or site plan delineating his portion of 166 Sq. Metres in the entire property and the Ld. ATMCD committed a serious error in law in not giving notice of the said appeal to the owner of the property and overlooking the exact area that was sealed by the SDMC; and the Ld. ATMCD failed to appreciate that a deliberate attempt had been made by the unscrupulous officials of the SDMC viz., respondent no. 3 & 4 in the first appeal in flouting order of the Court dated 25.09.2012.
BACKGROUND OF APPEAL NO. 60733/16 (OLD NO. 16/13)
15. Briefly stated, the appellant Nazruddin filed an appeal No. 471/12 on 06.09.2012, in which he claimed that his father had taken the subject property on rent sometimes in the year 1970 from Roop Chand Yadav and since then they have been in occupation and possession of the same and running business of building material, and even after the death of his father, he as well as his brother Nanhey Khan have been running the said business; and he claimed that they have license to run such business in the name of his brother Nanhey Khan since 1978 and even have a certificate under the Shops and Establishments Act. It is also stated that business is being run under the name and style of M/s A-One Cement Store and is also registered with the Department of Value Added Tax (VAT) with Govt. of Delhi.
RCA Nos. 60960/16 & 60733/16 Page 17 of 2916. It was also submitted that his brother Nanhey Khan later on started his own independent business and they are also having telephone connection in respect of his concern installed at the subject property. The case of the appellant Nazruddin in the appeal was that subject property is situated on the main Khyala Road, which has been declared to be commercial street as per the list issued by West Zone, SDMC vide Sr. No. 87. His grievance is that his property was sealed by the SDMC on 22.08.2012 without serving any Show Cause Notice or without affording any opportunity of hearing. He stated that he was not even allowed to remove his goods from the subject property including his truck bearing registration No. HR38-N-3838 parked at the site. He, therefore, sought de-sealing of the subject property in question.
GROUNDS OF APPEAL BY NAZRUDDIN
17. In the aforesaid factual background, the appellant Nazruddin in the present appeal has also assailed the impugned order dated 15.01.2013 inter alia on the grounds that area or dimension of the subject property that was sealed by SDMC was never in dispute and at the time of hearing on 25.09.2012 he was under the bonafide impression that the Appellate Tribunal was asking for the period for which conversion charges were supposed to be paid for using it for commercial purposes; and that although the commercial area was 166 Sq. Metres, he was in possession of total area of 600 Sq. metres since the year 2008. It is stated that respondent. No. 2 i.e, Roop Chand taking undue advantage of his statement moved the misc. application no. 98/2012 on 03.10.2012 thereby falsely alleging that he was in RCA Nos. 60960/16 & 60733/16 Page 18 of 29 occupation of 461 Sq. Metres, out of 627 Sq. Metres in the subject land. The impugned order is further assailed on the ground that first application on 03.10.2012 moved by the respondent No.2 Roop Chand Yadav was technically not maintainable since a fresh appeal should have been filed by him; and that it was not in the domain of the ld. Trial Court to decide the dispute with regard to ownership and/or possession of the parties with regard to the subject property; and that Ld. ATMCD failed to consider that respondent No.2 Roop Chand Yadav had admitted that he i.e. Nazruddin has been in possession of entire portion Mark A in site plan filed by the MCD, and therefore, the decision of the Ld. ATMCD is assailed whereby, respondent No.2 Roop Chand Yadav has been given liberty for recovery of 461 Sq. Metres of land. The impugned order dated 15.01.2013 is further assailed on the grounds that Ld. ATMCD wrongly relied on his erroneous and bonafide mistake in giving statement on 25.09.2012 while failing to observe that he has been absolute use, possession and occupation of the subject property, failing to observe that tenant cannot be said to be in lawful possession of certain portion and unlawful possession of the remaining property and Ld. ATMCD failed to take judicial note of the clarification made by him qua statement made by him on 25.09.2012; and therefore, he has also sought quashing of the impugned order in so far as disallowing his plea to use, occupy and to be in occupation of the remaining portion of the 461 Sq. Metres of land in he said property.
DECISION
18. I have given my thoughtful consideration to the submissions made by Ld. Counsel for the parties who addressed RCA Nos. 60960/16 & 60733/16 Page 19 of 29 arguments on being affording hearing through video conferencing on 10.08.2020. I have also meticulously perused the documents placed on the judicial record by the parties as also the record of the Ld. ATMCD.
19. Despite the apparent voluminous facts bearing upon the chequered history of these two appeals, the decision lies within a narrow compass. At the very outset, the observations made by the Ld. ATMCD in the impugned order dated 15.01.2013 that appellant Nazruddin is although a tenant in respect of land measuring 166 Sq. Metres, has been also unauthorizedly or illegally occupying remaining part of the subject property measuring 461 Sq. Metres part 'A' of the site plan relied upon by the SDMC, is based on half baked evidence and beyond its jurisdiction. Similarly, the findings given by the Ld. ATMCD that appellant Roop Chand Yadav has not been in actual possession, use or occupation of the premises, if not flawed, is certainly based on surmises and conjectures and also beyond its jurisdiction.
20. First thing first, it manifest that both the parties viz. appellant Roop Chand Yadav as well as appellant Nazruddin in the two appeals before us have taken the justice delivery system for a ride and hoodwinking the process of law in their own sinister ways. Although, it is stated by the SDMC and admitted that the Show Cause Notice under Section 345-A of the DMC Act dated 02.12.2011 was served upon Roop Chand through his son Laxman being the owner/occupier of the subject property, in his reply to the SDMC dated 23.12.2011, no RCA Nos. 60960/16 & 60733/16 Page 20 of 29 mention was made by the appellant Roop Chand Yadav that subject property was under the tenancy of his tenant Nazruddin to the extent of 166 Sq. Metres, and in the said reply he rather simply sought time to move the building material etc. from the site within 10 days time. Since, the appellant Nazruddin was admittedly in possession of a part of the subject property, it was most incumbent upon the appellant Roop Chand Yadav in the natural course of human nature and events to workout an arrangement with the tenant Nazruddin about payment of relevant chartes/fees and to seek appropriate permission for commercial use of the subject property from the SDMC. What stares on the face of the record is that there is no iota of word from the appellant Roop Chand Yadav that he had any negotiations with the tenant Nazruddin.
21. Likewise, there is nothing in the pleadings/appeal filed by appellant Nazruddin that after sealing of the property on 22.08.2012 till the time he filed appeal No. 471/12 on 25.09.2012, he had any negotiation with the owner/landlord, and both have very conveniently blamed the officials of the SDMC playing into the hands of each other. As the facts speak out louder than clear, appellant Nazruddin in the appeal bearing No. 471/12, nowhere asserted or spelled out in the pleadings as to what was the exact portion under his tenancy in the subject property or otherwise in his use and occupation. A bare perusal of the pleadings in the appeal No. 471/12 would show that he sought de-sealing order in respect of whole of the subject property claiming it to be under his tenancy but then no site plan was filed in the appeal RCA Nos. 60960/16 & 60733/16 Page 21 of 29 bearing No. 471/12 nor in the pleadings there was any mention or detail as to the size, measurements, dimensions or location of his tenancy portion in the subject property and it again stares on the face of the record that no notice of appeal was served upon the owner as well i.e. Roop Chand Yadav.
22. Be that as it may, admittedly appellant Nazruddin in appeal No. 471/12 made a statement that he had deposited Rs. 71,000/- towards conversion charges and claimed tenancy rights in respect of part of the subject property and also possession with regard to an area of 166 Sq. Metres ONLY in the subject property and that was ordered to be de-sealed vide order dated 25.09.2012 by the Ld. ATMCD. To my mind, Ld. ATMCD in its impugned order dated 15.01.2013 has been right and fair in attributing gross negligence on the part of the officials of the MCD in de-sealing the subject property and handing over its possession to appellant Nazruddin on 26.09.2012 an area beyond 166 Sq. Metres claimed by him under his tenancy. It was not a small area so to say and it belies commonsense that the officials of the SDMC blindly complied with the orderdated 25.09.2012 without seeking any clarification from the Ld. ATMCD but then the what was sealed, the same was de-sealed probably due to lack of clarity about the exact demarcation of areas/boundaries in the subject property.
23. Although, it was clearly spelled out vide condition No.2 in the order dated 25.09.2012 of the Ld. ATMCD that "remaining portion, which is not concerned with the appellant shall remain sealed as it is RCA Nos. 60960/16 & 60733/16 Page 22 of 29 unless specifically ordered by the Tribunal or any other Court". It is also a matter of record, that no exercise has been conducted by the SDMC so as to calculate the exact area of possession with the appellant Nazruddin and raise further demand in writing with regard to conversion charges, parking charges, penalties, interest and other charges. However, as the matter stands, it appear that the appellant Roop Chand Yadav in the interregnum has voluntarily chosen to deposit Rs. 8,46,285/- towards such charges by 15.10.2012, and therefore, as conceded by the ld counsel for the SDMC, its coffers are satisfied and it does not wish to be embroiled in the dispute between the two varying appellants.
24. Then there is twist in the story as subsequent to the filing of Misc. Application No. 98/2012 by the appellant Roop Chand Yadav on 03.10.2012, appellant Nazruddin sought to retract his statement before the Ld. ATMCD on 16.10.2012. Faced with such situation, the Ld. ATMCD in its order dated 16.10.2012(reproduced herein before) castigated the appellant Nazruddin for retracting from his earlier statement. But a bare perusal of the order dated 16.10.2012 would show that there arose a dispute with regard to the size, measurements and boundaries/demarcation of the subject property. What is clearly discernible is that at no stage of the proceedings, either in the pleadings or otherwise, appellant Nazruddin claimed that he has been in unauthorized or illegal occupation of remaining portion of part 'A' of the subject property, or that he had been allowed its permissive user by owner/landlord. Merely because, a Truck had been parked at the site RCA Nos. 60960/16 & 60733/16 Page 23 of 29 for loading or unloading or for parking, if it is assumed to be correct, would not ipso facto lead to an inference that appellant Nazruddin has been in illegal or unauthorized occupation or use of the remaining portion of the subject property. So this observation by the Ld. ATMCD in its impugned order dated 15.01.2013 is on a slippery slop and can not be sustained in law.
25. Further, the observations by the Ld. ATMCD in the impugned order dated 15.01.2013 that the appellant/applicant Roop Chand was never in actual physical possession, use or occupation of the disputed property on the date of sealing is clearly based on surmises and conjectures. To my mind, deep down there were issues as to ascertainment of possession or occupation of the remaining portion of the land in a constructive or symbolic manner by the owner or otherwise as to actual or physical possession, use or occupation of the land comprised in Part 'A' of the subject property; and also as to whether or not, or if so, since when the appellant Nazruddin had been allowed permissive user or otherwise encroached or usurped or otherwise made a hostile declaration of his possession forcibly or otherwise unauthorizedly. The gist of the aforesaid discussion is that although there was never any dispute that the appellant Roop Chand Yadav has been owner of the subject property in question and the appellant Nazruddin has claimed himself to be a tenant in respect of area of 166 Sq. Metres in the subject property, there are raised serious contentious and triable issues concerning boundaries/demarcation, status and legal claim of the parties with regard to the remaining portion RCA Nos. 60960/16 & 60733/16 Page 24 of 29 of the land comprised in the subject property that was sealed and de- sealed by the SDMC as on 22.08.2011.
26. To sum up, the approach by the Ld. ATMCD in rendering categorical findings on such vital issues merely based on assertions in the pleadings accompanied with half baked affidavits, skeletal documents including photographs filed from both sides cannot be sustained in law for the same being beyond its jurisdiction. Both the parties are themselves to be blamed for the mess in which they find themselves, and therefore, while the aforesaid observations by the Ld. ATMCD must not prejudice any of the parties to the present litigation, no fault can be found in the observations in the impugned order dated 15.01.2013 that the parties could only resolve their inter se disputes elsewhere or before the appropriate forum.
27. The said aspect assumes significance when it is appreciated that even the joint inspection reports conducted by the MCD dated 26.11.2012 and later 11.12.2012, referred hereinabove, would demonstrate that there has been serious divergence of claims as to the exact measurements and demarcation of the subject property, and both the parties are disputing claims with regard to the identification of their respective sites/portions in the subject property and infact relying upon different site plans. It goes without saying that such site plans had not been filed by them at the threshold. Thus, at the cost of repetition such issues can only be resolved de hor this litigation and the parties can have or seek legal recourse from the other RCA Nos. 60960/16 & 60733/16 Page 25 of 29 appropriate forum under the law. Therefore, the plea by the learned Counsel for the appellant Roop Chand Yadav that his client be given re-possession of the portion of the subject property by specific orders of this Court, or in the alternative the remaining portion of 461 Sq. Metres to be re-sealed is beyond the competence of this Tribunal under Section 347D of the DMC Act.
FINAL RESULT
28. In view of the aforesaid discussion, this Court reaches a conclusion that Ld. ATMCD has rightly concluded that it would be beyond its jurisdiction to direct resealing the remaining portion measuring 461 Sq. Metres of the subject property or deliver its possession to either of the parties. It may be reiterated that observations made by the Ld. ATMCD with regard to the claim of the parties over its possession, use and occupation or area beyond 166 Sq. Metres in the subject property cannot be sustained in law as it is likely to prejudice the rights and contentions of the parties, and which determination can only be reached by the parties having recourse to any appropriate forum under the law. There is no infirmity, illegality or incorrect approach in so far as the impugned order order dated 15.01.2013 results in dismissal of the Contempt Application against the officials of the MCD.
29. Before parting with these appeals, I would be failing in my duties if I do not refer to the vehement plea raised by Sh. Bhagwati Prasad Gupta, Ld. Counsel for appellant Roop Chand Yadav that it was RCA Nos. 60960/16 & 60733/16 Page 26 of 29 a case of gross mistake by Ld. ATMCD which vide order dated 25.09.2011 allowed the appellant Nazruddin in appeal No. 471/2012 to usurp and occupy the area beyond 166 Sq. Metres in collusion with the officials of the MCD, and therefore, it was urged that this Court has inherent jurisdiction ex debito justicie to mitigate the damage suffered by his client by the act of the Court. Reliance has been placed in this regard on decisions in Maria Margardia Sequeria Fernandes v. Erasmo Jack De Seqeria, AIR 2012 Supreme Court 1727; Amarjeet Singh & Ors. v. Devi Ram & Ors., (2010) 1 SCC 417; and Karnataka Rare Earth & Anr. v. Senior Geologist Department of Mines and Geology, (2004) 2 SCC 783. With due deference to the proposition of law cited before me, I am unable to persuade myself to rely on the cited judgments, and find no justification to apply the common law principle of "actus curiae neminem gravabit" meaning thereby that "the act of the court shall prejudice no one" for the elementary reason that the same have no bearing on the matters in issue in the present appeals. At the cost of repetition, having regard to the history of this entire case, as narrated in the preceding paragraphs of this order, it is manifest that both the parties have taken the Court i.e., the ld ATMCD for a ride in their own dubious ways, misrepresenting as also concealing facts and have not come to the Court/ATMCD with clean hands coupled with the fact that the officials of the SDMC tried to cover up their rampant follies as they had failed to indicate the area of the subject property that was contemplated to be sealed in terms of the show cause notice u/s 345-A of the DMC Act dated 02.12.2011 .
RCA Nos. 60960/16 & 60733/16 Page 27 of 2930. The order of the Ld. ATMCD dated 25.09.2011 was very specific and of course a detailed one thereby directing the SDMC to de- seal the subject property to the extent of 166 Sq. Metres and yet I have no hesitation in holding that there was indeed a jurisdictional error in failing to foresee or pre-empt the practical difficulties in the implementation of its order dated 25.09.2012 by the ld ATMCD. But then, the conduct of the parties subsequent to the issuance of the show cause notice dated 02.12.2011 and thereafter tell its own unsavory tale. There is a "clear and patent element of uncertainty" about the status of the subject property, and the possession of its part or portions of the litigating parties as on the day when it was sealed on 22.08.2011. The site plans filed on the record one after the other by the parties as also the SDMC leave tonnes of a doubt. The parties are at loggerhead over the last status report dated 11.12.2012 filed by the SDMC. In a scenario where both the parties have subverted the process of law and have committed palpable blemishes failing to bring on the record the true and correct state of affairs, I don't see how either of the two could be given any relief. I refrain from passing any order for maintaining status quo with regard to the subject property since the appellant Roop Chand is admitted to be the owner as well as the landlord and he can very well seek appropriate relief from the Court of law in case of any threat to his legal rights under any common or special law.
31. Accordingly, both the present appeals are dismissed. Nothing contained herein above shall tantamount to an expression of opinion on the merits or demerits of the rights and contentions of the parties to the subject property.
RCA Nos. 60960/16 & 60733/16 Page 28 of 2932. The original record of the Ld. ATMCD be sent back along- with copy of this Judgment. A signed copy of this Judgment be kept in each of the file. Files of both the appeals be consigned to Record Digitally signed by DHARMESH Room.
DHARMESH SHARMA
SHARMA Date: 2020.08.26 21:10:18
+0530
Announced in the open Court (DHARMESH SHARMA)
on 25th August, 2019 District & Sessions Judge (West)
Tis Hazari Courts: Delhi
RCA Nos. 60960/16 & 60733/16 Page 29 of 29