Delhi High Court - Orders
Sh Dheeraj Raikhy vs State Of Nct Of Delhi & Ors on 4 April, 2024
Author: Subramonium Prasad
Bench: Subramonium Prasad
$~11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 15402/2023
SH DHEERAJ RAIKHY ..... Petitioner
Through: Mr. Sonal Anand, Mr. Aayush Sai
and Ms. Surbhi Singh, Advocates.
versus
STATE OF NCT OF DELHI & ORS. ..... Respondents
Through: Mr. Parth Goyal, Advocate for Mr.
Jawahar Raja, ASC for GNCTD.
Ms. Ridhima Gaur, SPC for UoI.
Mr. Sumit Goel, Ms. Sreeparna Basak
& Mr. Jayant Bajaj, Advocates for R-
5.
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
ORDER
% 04.04.2024
1. Petitioner has approached this Court with the following prayers:
"a) Allow the present Writ Petition and issue an appropriate Writ/Order and/or Direction in the nature of mandamus directing the Respondent no.2 and 3 to enforce the Recovery Certificate bearing no.322 issued by Respondent no.6;
b) Pass any other order or direction which this Hon'ble Court may deem fit and proper under the fact and circumstances of the present case."
2. Notice in the matter was issued and Status Report has been filed. Relevant portion of the Status Report reads as under:
"3. Pursuant to Respondent No. 4's failure to comply This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 09/04/2024 at 23:45:02 with the directions in the earlier show cause notice, the Answering Respondent issued a fresh show notice on 5 September 2023.
A true copy of the show cause notice dated 5 September 2023 issued to Respondent No. 4 is attached herewith as Annexure R3/2.
4. The Answering Respondent then received a reply dated 13 September 2023 against the aforementioned show cause notices; the Respondent No. 4 disputed the merits of the recovery certificate and proposed that disputed property may be attached and sold to satisfy the Recovery Certificate. It was also brought to our notice that the Respondent No. 4 had instituted proceedings before the Hon'ble Punjab & Haryana High Court vide CWP 609 of 2023, M/s Raheja Developers Ltd. & Anr v. State of Haryana & Ors, raising certain issues with regard to provision of infrastructure facilities required for competition of the disputed project. The Hon'ble High Court was pleased to direct the Respondents therein not to take any coercive steps against the Petitioner therein till the NDOH; the matter is now listed before the Hon'ble Punjab & Haryana HC on 16 April 2024.
A true copy of the Respondent No. 4's reply dated 13 September 2023 to the show cause notices issued by the Answering Respondent is attached herewith as Annexure R3/3.
A true copy of the order dated 12 January 2023 passed by the Hon'ble Punjab & Haryana High Court in CWP 609/2023 is attached herewith as Annexure R3/4."
3. It is stated by the learned Counsel for the Petitioner that the concerned SDM is not taking efforts to ensure that the recovery certificate is executed.
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 09/04/2024 at 23:45:02 Learned Counsel for the Petitioner draws the attention of this Court to an Order dated 24.06.2021, passed by this Court in W.P.(C) 8092/2016, titled as Santosh Kumar Jha v. The Deputy Labour Commissioner (South), wherein this Court while trying to implement an award passed by the Administrative Tribunal has laid down a procedure. Relevant portions of the said Order reads as under:
"12. On a careful consideration of the suggestions given by the learned amici curiae, the directions issued by this Court on 27th March, 2017 and 13th December, 2019 are hereby modified, and substituted with the following directions. The SDM/Recovery Officer/Appropriate Authority shall follow the following procedure for execution of the Recovery Certificates:-
I. The execution of Recovery Certificate deserves special attention considering that any delay in execution proceedings would frustrate the winning party from reaping the benefits of the award/order in their favor on account of inordinate delay.
II. Upon receipt of the Recovery Certificate, the SDM/Recovery Officer/Appropriate Authority shall list the matter in open Court within one week of the receipt of the Recovery Certificate.
III. On the first date of hearing, the SDM/Recovery Officer/Appropriate Authority shall issue notice to the respondent and direct the respondent to deposit the due amount within thirty days of the receipt of the notice with a further direction that if the amount is not deposited, the respondent shall file an affidavit of his assets on the date of cause of action, date of the award as well as on the date of the swearing of the affidavit in Form 16A of Appendix E of the Code of Civil This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 09/04/2024 at 23:45:03 Procedure within 30 days of the receipt of the notice.
IV. The SDM/ Recovery Officer/Appropriate Authority shall also direct the respondent that if the amount is not deposited within 30 days, the respondent shall file additional affidavit in terms of the formats of Annexure A1 / Annexure B1 attached to the judgment of Bhandari Engineers-II (supra) within thirty days of the receipt of notice.
V. If the respondent is an individual, the additional affidavit of his assets and income shall be in the format of Annexure A1 attached to the judgment of Bhandari Engineers-II (supra).
VI. If the respondent is a proprietor of a proprietorship firm/partner of a partnership firm/member of an HUF/Director/Promoter of a company/Managing Trustee of a Trust, the additional affidavit in respect of the assets and income of the firm/HUF /Company/Trust, as the case may be, shall be in the format of Annexure B1 attached to the judgment of Bhandari Engineers - II (supra).
VII. If the respondent is Central Government/State Government/ Municipal Corporation/PSU/State/Central Government Entity such as DJB/DDA etc., the direction to file the affidavit/ additional affidavit is not necessary in the first instance. In such cases, the SDM/ Recovery Officer/ Appropriate Authority shall direct the respondent to disclose the particulars of its bank account(s) in which there is sufficient amount to satisfy the amount under the Recovery Certificate. Upon disclosure of the bank account(s), the SDM/Recovery Officer/ Appropriate Authority shall attach the bank account to recover the due amount. However, if the amount in the bank account(s) is not sufficient to This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 09/04/2024 at 23:45:03 satisfy the award, the SDM/ Recovery Officer/ Appropriate Authority shall direct the respondent to file the affidavit of assets in Form 16A, Appendix E under Order XXI Rule 41(2) of the Code of Civil Procedure. The additional affidavit in formats of Annexure A-1/B-1 is not necessary in such cases.
VIII. The SDM/Recovery Officer/Appropriate Authority shall issue the notice to the respondent in Format - I. Where the respondent is Central Government/State Government/Municipal Corporation/PSU or State/Central Government Entity such as DJB/DDA etc., the notice shall be issued in Format - II.
FORMAT - I "NOTICE (Title) Take Notice that a Recovery Certificate dated ..................................................... has been received from ................................................ office under which you are liable to pay Rs. ..................... to .....................
You are hereby directed to deposit Rs...............with this office within 30 days of receipt of this notice.
IN the event of failure to deposit Rs............ , you are directed to file an affidavit of your assets on the date of cause of action, date of the award as well as on the date of the swearing of the affidavit in Form 16A of Appendix E of the Code of Civil Procedure within thirty days of the receipt of the notice.
IN the event of failure to deposit Rs............ , you are further directed to file an additional affidavit in terms of the formats attached to the judgment of M/s Bhandari Engineers & Builders Pvt. Ltd. v. M/s Maharia Raj Joint Venture, dated 05th August, 2020, 270 (2020) DLT 582, namely (i) Annexure A1 - if you This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 09/04/2024 at 23:45:03 are an individual and; (ii) Annexure B1 - if you are proprietorship firm/partnership firm/HUF/company/trust, within thirty days of the receipt of the notice.
These affidavits are mandatory as per the directions issued by the High Court of Delhi in W.P.(C) 8092 of 2016.
You are directed to appear in person before the undersigned on ...........................(date).
GIVEN under my hand and the seal of the .....................on the....... day of ............... "
FORMAT - II "NOTICE IN CASE THE RESPONDENT IS CENTRAL GOVT/STATE GOVT./PSU/CENTRAL /STATE GOVT.
ENTITY (Title) Take Notice that a Recovery Certificate dated ................................................... has been received from ................................................ office under which you are liable to pay Rs. ..................... to .....................
You are hereby directed to deposit Rs...............with this office within 30 days of receipt of this notice.
IN the event of failure to deposit Rs............ , you are directed to file the particulars of your bank account(s) in which there is sufficient amount to satisfy the Recovery Certificate, on affidavit before the undersigned within 30 days of receipt of this notice.
This affidavit is mandatory as per the directions issued by the High Court of Delhi in W.P.(C) 8092 of 2016.
The Competent Officer of the respondent shall appear before the undersigned on ...........................(date).
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 09/04/2024 at 23:45:03 GIVEN under my hand and the seal of the .....................on the....... day of ............... "
IX. In pending execution cases, if the respondent has not already filed the affidavit of assets and income, the SDM/Recovery Officer/ Appropriate Authority shall direct the respondent to file the affidavits of his assets and income in terms of this judgment within 30 days of the receipt of the notice. In case the respondent is Central Government/State Government/Municipal Corporation/PSU or State/Central Government Entity such as DJB/DDA etc., the concerned respondent entity be directed to disclose the particulars of its bank account(s) in which there is sufficient amount to satisfy the Recovery Certificate. These directions be issued to the respondent in all pending cases within four weeks.
X. In the event of failure of the respondent to deposit the amount due under the Recovery Certificate, the SDM/Recovery Officer/ Appropriate Authority shall recover the amount by attachment of the assets of the respondent.
XI. Sections 51(b), 60 to 64 and Order XXI Rules 41 to 57 of the Code of Civil Procedure contain the provisions for attachment of properties in execution. Before attaching a property, the SDM/Recovery Officer/ Appropriate Authority shall ensure that the property does not fall in the list of properties which are exempted from attachment/sale under the proviso to Section 60(1) of the Code of Civil Procedure. The SDM/Recovery Officer/Appropriate Authority shall ensure the compliance of Sections 60 to 64 and Order XXI Rules 41 to 57 of the Code of Civil Procedure with respect to the attachment of properties.
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 09/04/2024 at 23:45:03 XII. Upon the aforesaid affidavit being filed, the SDM/Recovery Officer/Appropriate Authority may examine the respondent and/or conduct an inquiry to examine whether the respondent has truly disclosed his assets and income in the affidavit.
XIII. With respect to the power to detain the respondent, the SDM/Recovery Officer/Appropriate Authority shall follow the principles of natural justice by affording a reasonable opportunity to the respondent before passing the detention order.
XIV. All proceedings before the SDM/Recovery Officer/Appropriate Authority shall be held in open Court. XV. The daily cause list of the cases shall be displayed outside the Court Room as well as on the website.
XVI. The orders passed by the SDM/Recovery Officer/Appropriate Authority shall be released on the website of the respective SDM/E-Courts portal within one week.
XVII. The SDM/Recovery Officer/Appropriate Authority shall follow this procedure in respect of the proceedings under Industrial Disputes Act, Employee's Compensation Act, Motor Vehicles Act as well as other statutes which empower the SDM/Recovery Officer/Appropriate Authority to execute the Recover Certificate.
XVIII. These guidelines shall apply to all pending cases as well as new cases.
13. These guidelines be implemented with effect from 02nd August, 2021. Government of NCT of Delhi shall publish these modified guidelines on its website and shall circulate it to all concerned SDMs/Recovery This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 09/04/2024 at 23:45:03 Officers/Appropriate Authorities.
14. The successful implementation of this Scheme requires strict compliance by SDMs/ Recovery Officers/Appropriate Authorities and thus, a Committee is constituted to supervise the implementation of these directions. This Committee shall comprise of the following members:
(i) Principal Secretary (Law, Justice & Legislative Affairs), GNCTD as Convenor.
(ii) Principal Secretary (Revenue), GNCTD.
(iii) Secretary-cum-Commissioner (Labour), GNCTD.
(iv) Member Secretary, DSLSA.
(v) Ms. Nandita Rao, Additional Standing Counsel, GNCTD.
(vi) Mr. Akshay Chowdhary, Advocate."
4. It is stated by the learned Counsel for the Respondent that the SDM is taking steps in tune with the dictum laid down by this Court in the abovementioned Judgment.
5. In terms of the Order dated 24.06.2021 passed by this Court in W.P.(C) 8092/2016, the SDM is directed to take steps according to the procedure laid down by this Court to ensure that the amounts are recovered at the earliest.
6. With this direction, the Writ Petition is disposed of along with the pending applications, if any.
SUBRAMONIUM PRASAD, J APRIL 4, 2024 Rahul This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 09/04/2024 at 23:45:04