Delhi High Court
Kanwar Bhan Agarwal And Ors. vs Union Of India (Uoi) And Ors. on 6 November, 2006
Author: Anil Kumar
Bench: Anil Kumar
JUDGMENT Anil Kumar, J.
1. The petitioner in this writ petition has prayed that Secretary, Land & Building, NCT of Delhi and Delhi Development Authority should demarcate and ascertain the extent of the public land encroached upon by M/s. New Friends Cooperative House Building Society and Shri Ajay Kumar Latyan, respondent Nos. 5 and 6 respectively and Municipal Corporation of Delhi be directed to restore the sewer line of Bharat Nagar Colony passing though Plot No. C-773, adjoining Bharat Nagar as shown in the plan filed with the petition. The prayer has also been made for a direction to respondent No. 4, Municipal Corporation of Delhi, not to issue occupancy certificate and completion certificate in respect of any construction on Plot No. C-773, if plot No. C-773 or a part thereof is found to be under the management and control of respondent/DDA.
2. Brief facts to comprehend the disputes between the parties are that the petitioners are the residents of Bharat Nagar Colony which was regularised and according to them marginal changes were made for the regularisation plan which, however, did not affect the properties of the petitioners and the sewer line which passed through the plot No. C-773. The petitioners emphasized that the sewer line of Bharat Nagar Colony passes through Plot No. C-773 and this raises a presumption that the plot No. C-773 was not a part of the land allotted to M/s. New Friends Cooperative House Building Society.
3. According to the petitioners Nazul land was allotted to respondent No. 5, M/s. New Friends Cooperative House Building Society in the year 1962-63. The said society also purchased some freehold land from the residents of village Khizarabad and Bharat Nagar. According to petitioners, on account of various irregularities and land grabbing and various acts of commission and omission, society was superseded and an Administrator was appointed. Petitioners contended that there colony, Bharat Nagar, came up on the freehold land of village Khizarabad particularly Khasra No. 38 and 39 which were regularised in 1961-62 by Municipal Corporation of Delhi as the said colony was one of the 102 colonies which were regularised for the first time in Delhi. On regularization of Bharat Nagar, its residents have paid development charges for laying of sewer line and for providing water and electricity to the Municipal Corporation of Delhi. The sewer line which was laid passes through a portion of plot No. C-773 which is claimed by respondent No. 5 to have been allotted to one of the members. According to petitioners, the House Nos. 20-B, 98-A/1 is in the regularized layout plan of Bharat Nagar comprising of Khasra No. 38 of Khizarabad. Despite the said houses being within the regularized layout plan, they were demolished partly by Delhi Development Authority without any notice and without following any legal process. According to the petitioners, a portion of plot No. C-773 was also demolished. The plea of the petitioners is that the sewer line of the Bharat Nagar Colony had a natural flow towards plot No. C-773 and it got choked creating water logging in Bharat Nagar Colony and caused health hazards. Water logging on the land became apparent and visible in 1994 when respondent No. 6 took up the construction of a building with a basement on Plot No. C-773. According to petitioners, the building construction was carried out under the protection of the local police and with the help of muscle power of respondent Nos. 5 and 6. According to the petitioners, the building plans were sanctioned in the name of B.R. Verma, a resident of Gurgaon, for plot No. C-773. According to them, the plan has been sanctioned for plot No. C-773 without ascertaining and verifying the title of the said plot. The building sanctioned plan has been challenged by the petitioners on the ground that it incorporates a part of Bharat Nagar also. Petitioners also referred to order dated 6th September, 1994 passed by Shri Rakesh Garg, Civil Judge, for demarcation but according to petitioners no demarcation has been done.
4. The grievance of the petitioner is that the gallies of Bharat Nagar towards plot No. C-773 have been closed by raising brick walls and respondent Nos. 5 and 6 have further threatened the petitioners with demolition of their properties with the help of authorities and it was contended that Shri Birender Singh of Land Protection Branch of Delhi Development Authority is in active connivance and collusion with these respondents for his personal reasons and he had also taken part in the demolition carried out on 24th and 25th November, 1993. The petitioners also complained about the encroachment on five feet wide road between the vacant land of plot No. C-773 and Bharat Nagar which has also been included in plot No. C-773 and in the circumstances, the petitioners contend that they are the victims of high-handed action of respondent/DDA and the Municipal Corporation of Delhi in permitting construction of an unauthorised building on open public land and dismantling the sewer line of the Bharat Nagar Colony. The petitioners contended that since they are the residents of Colony and are inhabitants of locality, they have locus standi to challenge the administrative action, therefore, the present petition has been filed as a social action litigation. According to them, the sewer line has been up-rooted by the officials of the MCD without the approval of the competent authority and consequently the rights of the petitioners and other residents of Bharat Nagar Colony under Article 21 of the Constitution of India have been infringed. According to them, respondent/DDA has not bothered to demarcate the area any time or verify the land actually allotted to M/s. New Friends Cooperative House Building Society despite the order of the Civil Court to demarcate the land passed on 3rd September, 2004 and in the circumstances, the present petition was filed.
5. Along with the petition, the petitioners have filed some correspondence and a copy of the statement of Shri M.L. Jaggi in Suit No. 64/1983. A copy of the order issued in Suit No. 619/1993 titled Shri Jai Bhagwan v. DDA was also produced whereby a commissioner was appointed who was also directed to report about the digging and tampering of sewer line on Plot No. C-773, New Friends Colony. The petitioners have also produced some photographs showing the demolition carried out in properties No. 98-A/1, 28-B.
6. The petition is opposed by the respondents and a counter affidavit of Sh. Ajay Latyan, respondent No. 6 was filed who asserted that the petitioner No. 1, Kanwar Bhan Aggarwal, at whose instance the present petition has been filed has concealed about the proceedings between him and the Society, respondent No. 5 under Section 145 of the Criminal Procedure Code in Case No. 59/3/86 instituted as far back as 28th January, 1975. After contest, where detailed evidence was recorded on behalf of petitioner No. 1 and respondent No. 5, it was held that petitioner No. 1 has wrongfully encroached upon plot No. C-773, New Friends Colony and he was ordered to be removed from there. The allegation that in 1993 plot No. C-773 was carved out of the lands of the Bharat Nagar, therefore, is apparently false and had been made with a view to file the present petition.
7. The respondent No. 6 also detailed about a suit titled Jai Bhagwan etc v. MCD which was pending in the Court of Civil Judge at the time the counter affidavit was filed. It was contended that the disputes in the present petition are also the subject matter of another law suit titled Inderjit Arora v. MCD which was also pending adjudication. It was asserted by the said respondent that in the garb of social action litigation, the petitioners are trying to lay a claim on plot No. C-773, by raising false and contradictory allegations and which have already been adjudicated in the proceedings under Section 145 of Criminal Procedure Code. The contradictions made by the petitioners, according to respondent No. 6, are that in the writ petition it is claimed that the lands have been forcibly encroached after demolition of the properties of the petitioners in 1993 and from the portions where the properties were demolished a plot No. C-773 has been carved out necessitating filing of a suit for injunction with the prayer for demarcation and at the same time it has been alleged that the allottee of plot No. C-773 has encroached upon 5 feet wide land and incorporated the same in his plot. The respondent No. 6 contended that he is the attorney of Sh. Vishwanath Verma who had been handed over the plot in November, 1993 after petitioner No. 1 was dispossessed.
8. Respondent No. 6 contended that DDA had given lands on leasehold basis for making residential colony to respondent No. 5 who after developing and demarcating the plots as per approved lay out plan allotted the plots to its members and perpetual sub lease were executed. Plot No. C-773 was part of the original approved lay out plan and was allotted to Mrs. Meena Madan who was resident of A-442, defense Colony, New Delhi. Smt. Meena Madan was unable to obtain possession of the plot as it had been encroached by petitioner No. 1 who had also raised a wall on the property entailing proceedings under Section 145 of the Criminal Procedure Code instituted against petitioner No. 1 in case No. 59/3/86 titled State v. Daulat Ram Kapoor and Anr. It was pleaded that during the pendency of criminal proceedings under Section 145 of Criminal Procedure Code, a civil suit was instituted titled Inderjit Arora v. MCD also alleging that a sewer line which passes through the said plot, has been obstructed. Reference has also been made to another suit filed being Suit No. 619/1993 titled Jai Bhagwan v. DDA where also the prayer was made for demarcation of land on the ground that respondent No. 5 has encroached upon the land owned by Bharat Nagar colony, Khizarabad lands and a part of plot No. C-773 has been carved out of the same.
9. Later on, during the pendency of the proceedings under Section 145 of Criminal Procedure Code, Mrs. Meena Madan surrendered her rights in the said plot which was then allotted to Sh. Vishwanath Verma, son of Late Mr. Guranditta who was also a member and shareholder of respondent No. 5, who was then allotted the plot No. C-773 in May, 1983. A reliance was also placed on a deed of perpetual sub lease dated 23.6.1988 in favor of Mr. Vishwanath Verma which was registered as document No. 5062 in Additional Book No. 1, Volume No. 6150 at pages 155 to 163 on 7.7.1988. According to respondent No. 6 in November, 1993 Delhi Development Authority, respondent No. 3 was requested to get the encroachment removed from the said plot and for removal of encroachment from another plot in D block also. According to said respondent, Mr. Rakesh Behari, Commissioner (Land Management), DDA ordered action in respect of the plots pursuant to which possession of the plot No. C-773 was taken and encroachments were removed and the possession was handed over to sub lessee, Mr. Vishwanath Verma on 8.12.1993.
10. According to respondent No. 6 sanction was sought for the building plans which was granted on 7.2.1995 after no objection certificate was given by respondent No. 5. Construction was carried on the said plot and clearance for form 'C' was granted on 24.5.1995 and form 'D' clearance was granted on 22.6.1995. It was categorically contended that after petitioner No. 1 failed to retain his wrongful possession, the present petition has been filed on the false premise that public or nazul or private land has been encroached upon in 1993. The copy of the order dated 30.5.1986 in Case No. 59/3/86 titled State v. Daulat Ram Kapoor under Section 145 of Criminal Procedure Code was also filed wherein it was held that Mr. K.B. Aggarwal, petitioner No. 1 had un-authorizedly encroached upon the land of the society in plot No. C-773, New Friends Colony on 25.7.1974 and, therefore, petitioner No. 1 is not entitled for its possession and consequently the Station House Officer, Sriniwaspuri was directed to take action. A copy of the sub lease executed by the President of India dated 23.6.1988 in favor of Vishwanath Verma on behalf of New Friends Cooperative House Building Society Ltd has also been produced.
11. No counter affidavit has been filed by the other respondents. The petitioners challenged the pleas of respondent No. 6 on the ground that though he claims to be an attorney of Sh. Vishwanath Verma, however, no such power of attorney has been produced by him. The petitioners again reiterated demarcation of land allotted to respondent No. 6 by ADM, National Capital Territory of Delhi. Regarding the order passed under Section 145 of Criminal Procedure Code it was contended that the order dated 30.5.1986 was a nullity as the question of title could not be decided in the proceedings under Section 145 of Criminal Procedure Code.
12. Though under Section 145 of Criminal Procedure Code, the question of title could not decided, however, no appeal was filed against the order dated 30th May, 1986 by the petitioner No. 1. The order dated 30th May, 1986 was passed after detailed evidence was led by the parties in the said petition under Section 145 of Criminal Procedure Code. From the order, it is apparent that petitioners knew that Smt. Meena Madan resident of A-442, defense Colony, had been claiming that the plot No. C-773 was allotted in her name in 1974 and subsequently Shri Vishwanath Verma started claiming rights in the property. The petitioner in the writ petition did not disclose about the dispute between the petitioner No. 1 and respondent No. 5 pertaining to the same plot where it had been held in the proceedings under Section 145 of Criminal Procedure Code that petitioner No. 1 un-authorizedly encroached upon the said plot No. C-773, New Friends Colony on 25th July, 1974. The petition has also been filed on the premise that respondent No. 6, Shri Ajay Latyan, is an unauthorized occupant of plot No. C-773 who has purchased the plot on a power of attorney in collusion and connivance with respondent No. 5 in the year 1994. From the order dated 30th May, 1986, it is apparent that the petitioner No. 1 had been agitating his possession since 1974, however, in the dispute with respondent No. 5 in the proceedings under Section 145 of Criminal Procedure Code no plea was raised by the petitioner No. 1 that the sewer line of the Bharat Nagar Colony passes through the plot No. C-773. A certified copy of the plan has been filed obtained from Suit No. 613 of 1993 titled Jai Bhagwan Gola v. DDA and MCD showing Khasra No. 38 of Village Khizrabad with the road line, however, the said plan does not show any sewer line of Bharat Nagar Colony was passing thorough Plot No. C-773 of New Friends Cooperative House Building Society. Except the averments made in the petition, no document has been filed to show that the sewer line of Bharat Nagar Colony was below the surface of plot No. C-773. The plea of the petitioner that the sewer line of Bharat Nagar Colony passes below the Plot No. C-773 can also be not accepted as the construction of the plot of land bearing No. C-773 of New Friends Cooperative House Building Society has been carried out pursuant to the sanction granted by the concerned authorities as well as grant of form 'C' and 'D' where form 'C' is the certificate regarding the drainage and sanitary work being completed according to the Building Bye-laws, 1983 and the Drainage Bye-Laws of Municipal Corporation of Delhi and Form 'D' that the work had been inspected and was in accordance with the Building Bye-Laws, 1983 and sanction building plans within the validity period. The petitioners have also filed a copy of the plan of Bharat Nagar Colony prepared by DDA as an unauthorised colony. The said plan also does not indicate the position of Plot No. C-773 of New Friends Colony and any sewer line of Bharat Nagar Colony passing under the Plot No. C-773 of M/s. New Friends Cooperative House Building Society. Consequently, the plea of the petitioners that the sewer line of Bharat Nagar Colony passes under plot No. C-773 cannot be accepted.
13. A copy of the statement filed by the petitioner of Shri M.L. Jaggi in Suit No. 64 of 1983 also does not show that the sewer line of Bharat Nagar Colony passes under or had passed under the plot No. C-773 of M/s. New Friends Cooperative House Building Society. His statement is It is correct that a sewer line is lying in between the land and the house on the other side. It might be that the sewer that is lying there falls into the main road. It is correct that the place where the sewer line is laid is a gali.
From this statement of Secretary of respondent No. 5 also it cannot be inferred that the sewer line of Bharat Nagar Colony passed under the Plot No. C-773 of M/s. New Friends Cooperative House Building Society.
14. Though the petitioners have contended that they paid the developmental charges for laying the sewer line, however, nothing has been produced by them showing that any amount had been paid or the sewer line was laid as has been alleged by them. The plea that the common sewer line passes underground public roads and streets or through public lands and consequently the alleged sewer line of Bharat Nagar Colony raises a presumption that Plot No. C-773 was not a part of the land allotted to respondent No. 5 is also based on surmises and cannot be accepted in the facts and circumstances. The petitioners have filed the petition contending that in or about 1993, the sewer line has been uprooted and a gali has been encroached to include in the plot on which construction has been made pursuant to sanctioned plan for which no enquiries were made regarding the ownership of the said plot and other parameters to permit construction of building on the said plot.
15. The petitioner cannot make a grievance regarding the demolition carried out by the respondents in property No. 28, 28B, 98-A/1, Bharat Nagar Colony nor there is anything to show that the demolition was done in collusion with respondent Nos. 5 and 6 and the demolition was not following the rules and regulations. If the demolition of the houses of the petitioners were contrary to the rules and regulations, they would have taken legal action against the unauthorized demolition, but no action has been brought to my notice which was taken by the petitioners after these properties of Bharat Nagar were demolished illegally and unlawfully.
16. The petitioners have also failed to establish that the sanction of the building plan in the name of Shri B.R. Verma is not in accordance with the Municipal Bye-Laws or while sanctioning the plan any procedural illegality was committed by the respondents. Except making bald allegations, nothing has been substantiated by the petitioners and in the circumstances, there are no grounds to hold that the sanction plan of the building and the construction of the building on Plot No. C-773 is contrary to the building bye-laws. Learned Counsel for the petitioners is also unable to disclose as to what happened in the suit filed by Shri Jai Bhagwan Goyal in suit No. 64 of 1983 where the statement of Secretary of respondent No. 5 was recorded. Rather the finding of SDM in the proceedings under Section 145 of Criminal Procedure Code was that Shri K.B. Aggarwal, petitioner No. 1, had unauthorizedly encroached upon the plot No. C-773 of M/s. New Friends Cooperative House Building Society on 25th November, 1974. In the rejoinder filed by the petitioner, a reference has been made to the report filed by a local commissioner in a suit, however, no such report has been filed nor is there anything to prove that the possession of Plot No. C-773 is unauthorized.
17. The petitioners have also claimed that the possession of the respondent No. 6 is illegal and unauthorized as he has not produced the power of attorney in his favor. Nevertheless the main controversy is that the respondent No. 5 in connivance of respondent No. 6 has encroached the land and has made building on plot on. C-773 and has uprooted the sewer line of Bharat Nagar colony. On account of non production of power of attorney by the respondent No. 6, the plea of the petitioner that the respondent No. 5 and 6 had encroached upon the public land and carved the plot which has been allotted to the Shri Bhagwan Sharma, has not been established nor on this ground any of the contention of the respondent No. 6 has been established.
18. Non production of power of attorney in his favor by the respondent No. 6 does not establish that the sewer line of Bharat Nagar passed under the Plot No. C-773 and the land had been encroached upon by respondent No. 5. Consequently, non-production of general power of attorney by respondent No. 6 in his favor from Shri Vishwanath Verma, sub lessee of respondent No. 5 is not material nor an adverse inference can be taken against the respondents so as to infer that the sewer line passed through plot No. C-773 which had been allegedly demolished by the respondents.
19. The allegation of the petitioners that the petition is a social action litigation is also not correct in the facts and circumstances. The petitioner No. 1 is vitally interested in the litigation. The petitioner No. 1 had illegally occupied the plot No. C-773 and in the detailed contested proceedings under Section 145 of the Criminal Procedure Code, the illegal possession from him was recovered. The order passed in Section 145 Criminal Procedure Code proceeding was not challenged by the petitioner No. 1. In the circumstances, it can not be inferred that the petition is only for social purposes.
20. The petitioners have also not disclosed as to what happened in the two other suits filed pertaining to the same plot of land. The petitioners have obtained the copies of plan and an order passed in one of the suits regarding the alleged demarcation and in a way the petitioners are trying to enforce an order of demarcation passed in a civil suit under the provision of Article 226 of the Constitution of India which is ex-facie not permissible. The petitioners have failed to disclose as to whether any decrees have been passed in those two suits referred to by the petitioners and what decrees have been passed.
21. The petitioners in the facts and circumstances have concealed the material facts and they are guilty of suppression of material facts. Suppression of material facts by the petitioners by itself is a sufficient ground to decline any relief to the petitioners. A party must approach the Court with clean hands and disclose all material facts which may in one way or the other have direct bearing on the outcome of the case. A Single Judge in Commissioner of Central Excise v. Anju Vohra had dismissed the writ petition where the particulars of a similar writ petition and the interim order passed therein were not disclosed. In Ramanand v. Union of India , a division bench had held that non disclosure of an earlier suit filed in respect of same property by some of the petitioners was a serious concealment of relevant facts and on this ground the writ petition was dismissed.
21. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. More often the process of the court is being abused by the Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life and they find the court-process a convenient lever to retain the illegal gains indefinitely. A person who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation. The petitioners have not disclosed the true facts and have concealed and suppressed the material information and in the circumstances they are not entitled for any discretionary relief.
22. In G. Narayanaswamy Reddy v. Govt. of Karnataka the facts were not disclosed in the special leave petition and the Court came to know the said facts from the counter affidavit filed by the respondents. In the present case also the fact that the petitioner No. 1 had illegally occupied the plot No. C-773 and an order was passed under Section 145 of the Criminal procedure Code to recover possession from the petitioner No. 1 was not disclosed which has come to the notice from the counter affidavit filed by the respondent No. 6 and the copy of the order passed under Section 145 of the Criminal Procedure Code against the petitioner. In G. Narayanaswamy Reddy (supra) the Supreme Court at page 263 had held:
....The petitioners preferred these special leave petitions, namely SLP Nos. 823 and 824 of 1990 against the decision of the Division Bench of that High Court, and obtained an interim stay of dispossession therein. Whatever the ultimate effect of the stay orders, in view of the provisions of Section 11A of the Land Acquisition Act, to which we have already referred earlier, it is beyond dispute that the fact of the stay orders was highly material in the determination of these special leave petitions. Curiously enough, there is no reference in the special leave petitions to any of the stay orders and we came to know about these orders only when the respondents appeared in response to the notice and filed their counter-affidavit. In our view, the said interim orders have a direct bearing on the question raised and the non-disclosure of the same certainly amounts to suppression of material facts. On this ground alone, the special leave petitions are liable to be rejected. It is well settled in law that the relief under Article 136 of the Constitution is discretionary and a petitioner who approaches this Court for such relief must come with frank and full disclosure of facts. If he fails to do so and suppresses material facts, his application is liable to be dismissed. We accordingly dismiss the special leave petitions.
23. The petitioners have not disclosed the true facts and have concealed and suppressed the material information and in the circumstances they are not entitled for any discretionary relief. In the facts and circumstances, the petitioners are also unable to establish that the sewer line of Bharat Nagar passed through the plot No. C-773 and therefore they are not entitled for restoration of alleged sewer line nor are petitioners entitled for an order for demolition of the building constructed on Plot No. C-773 nor for an order to demarcate the land as has been claimed by the petitioner. There are no grounds to invoke the jurisdiction by this Court under Article 226 of the Constitution of India and the writ petition is without any merit and it is, therefore, dismissed.