Delhi High Court
Village Kishangarh Welfare ... vs Union Of India & Others on 17 August, 2009
Author: Anil Kumar
Bench: Anil Kumar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION (CIVIL) NO.9131/2008
% Date of Decision: 17.08.2009
Village Kishangarh Welfare Association .... Petitioner
Through Mr.Sudhanshu Tomar, Advocate
Versus
Union of India & Others .... Respondents
Through Mr.Baldev Malik, Advocate for the
Union of India.
Mr.Ajay Verma, Advocate for DDA.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
1. Whether reporters of Local papers may be YES
allowed to see the judgment?
2. To be referred to the reporter or not? NO
3. Whether the judgment should be reported in NO
the Digest?
ANIL KUMAR, J.
* CM No.10069/2009 This is an application by the petitioner seeking restraint against DDA from interfering with the peaceful possession of the members of the petitioner from their houses/built-up structures particularly the vacant plots situated in the colony known as JNU Road, Village Kishan Garh, Village Kishan Garh, New Delhi, in the interest of justice. WP(C) 9131/2008 Page 1 of 13
The petitioner filed the present petition seeking direction to DDA from not carrying out demolition and/or taking possession and dispossessing the members of the petitioner from their houses/built-up structures forming part of colony known as "JNU Road, Village Kishan Garh", Village Kishan Garh, New Delhi and also direction to DDA not to interfere with the peaceful possession of the members of the petitioner association.
This court by order dated 26th December, 2008 directed the petitioner to file details of constructions/plans of the individual members and their property numbers within one week. By order dated 7th January, 2009, this Court again directed the petitioner to file details of construction/plan of individual members and the property number.
Though the counsel for the petitioner had insisted that the details of individual members and property numbers are indicated at Annexure P-2, however, it was held that since the petitioner has not furnished the details of the construction/plan of the individual members. Therefore, the petitioner sought more time to file the plans of the existing construction in respect of each and every individual of 999 members of the petitioner society. The petitioner was directed to file individual affidavits of the members' undertaking that they will not carry out any construction beyond what is indicated in the plans submitted by them. WP(C) 9131/2008 Page 2 of 13 DDA was also directed to verify the existing construction in terms of the plan. On these undertakings of the members of the petitioner which was to be filed, the counsel for DDA had stated, on instructions that demolition action shall not be taken against the existing construction at the site. It was further clarified that in respect of fresh encroachment or construction, DDA will be entitled to take action of demolition as per law.
Despite the undertaking given on behalf of members by the petitioner to file the plans showing the existing construction and an affidavit of undertaking by all the members, only 25 members out of 999 members filed the plans and undertaking. These plans and undertaking though should have been filed before the Court, however, the petitioner filed them before the respondent/DDA.
The petitioner, thereafter, had filed another application being CM No.5910 of 2009 seeking more time to comply with the order dated 7th January, 2009 which was disposed of on 4th May, 2009 with the direction to the petitioner to have an undertaking and maps/site plan filed in terms of the order dated 7th January, 2009 within a period of one month. It was also clarified that in case the undertaking and maps/site plans are not filed within one month, the said order will not operate to the advantage of the said persons and DDA will be at liberty WP(C) 9131/2008 Page 3 of 13 to take action as per law against the persons who will not file undertakings with the site plans/maps showing the existing constructions.
The petitioners have now filed the present application seeking restraint against the respondent from interfering with the peaceful possession of the members of the petitioner. The petitioner has contended that the respondent is trying to dispossess some of the members and the instance of Smt.Bimla Chaudhary was categorically cited contending that DDA has tried to raise a boundary wall though the name of Smt.Bimla Chaudhary is given at serial number 74 in the list of members. It is contended that DDA officials could not succeed in their ulterior designs and motives due to stiff resistance of the members of the colony, however, the officials have threatened that they shall dispossess the above said members from her plot No.74A.
The petitioner/applicant has contended that 27 members of the petitioner society have already filed their affidavit/undertaking and construction plans and the respondent is picking up the attitude to pick and choose.
WP(C) 9131/2008 Page 4 of 13
The petitioner also contended that a contempt case No.218 of 2007 titled Ramvir Singh v. DDA and others was filed where Vice Chairman had submitted his affidavit stipulating that JNU Road, Village Kishan Garh is an unauthorized colony which is in the list of colony to be regularized and in respect of which a provisional certificate for regularization has already been issued.
I have heard the learned counsel for the petitioner. The order dated 26th December, 2008 passed by this Court is categorical about direction to petitioner to file construction/plan of individual members and property number in the court. The order dated 7th January, 2009 further reiterated the direction to the petitioner to file the affidavits of individual members giving an undertaking not to carry out any construction along with the plan showing existing construction. Despite the categorical direction, the plans showing the construction already existing on the land in possession of some of the members have not filed in the Court. Learned counsel for the petitioner rather contended that the plans showing construction and affidavits of the undertaking were filed before DDA prior to 4th May, 2009 and after 4th May, 2009 when the application of the petitioner being CM No.5910 of 2009 decided, the plans and the affidavits of two more members were filed. In the circumstances it is contended that the order has been complied with in respect of only 27 members. The learned counsel for WP(C) 9131/2008 Page 5 of 13 the petitioner, however, has not produce the copies of affidavits of undertaking and plans showing the existing structure before this Court.
Learned counsel for DDA, who appears on advance notice, has produced copy of one of the affidavits and plans filed by Major Sukhdev Singh Rai. Though by order dated 4th May, 2009, one month's time was granted, however, said affidavit and the plan has not been filed within one month.
Learned counsel for DDA has also pointed out that the petitioner has deliberately tried to mis-lead this court as Smt.Bimla Chaudhary had filed a suit for permanent injunction seeking restraint against DDA from dispossessing her from the piece of land in the Village Kishan Garh. The suit was dismissed by Additional District Judge by order dated 3rd July, 2004 and aggrieved by the said order the said member of the petitioner society had filed first appeal being RFA No.381 of 2004 titled Bimla Chaudhary v. UOI & Others which was also dismissed by this court by order dated 15th July, 2009 dismissing the appeal and imposing a cost of Rs.15,000/-. While dismissing the appeal, this court had held that the Trial Court was fully justified in rejecting the relief of injunction to said member of the petitioner society. It is contended that the petitioner has deliberately concealed the material facts and the petitioner has deliberately filed the false application. Perusal of the WP(C) 9131/2008 Page 6 of 13 application reveals that it is signed by Shri Umed Singh, alleged Secretary of the petitioner society, who has also sworn an affidavit in support of the application indicating categorically that "nothing material has been concealed therein". Apparently, the petitioner society has concealed the material fact about the dismissal of the suit of injunction of Smt.Bimla Chaudhary and dismissal of her first appeal. Despite this in the application one of the main grievance is, that DDA has tried to dispossess the said member, Smt.Bimla Chaudhary and has tried to construct the wall.
An affidavit dated 27th July, 2009 of Major Sukhdev Singh Rai has been produced along with the plan of Plot No.867 filed with DDA. The affidavit reveals that the deponent has deposed that he is filing plan of existing construction in the property as per the directions of the court by its order dated 7th January, 2009 and 4th May, 2009. However, the plan filed along with the affidavit reveals that it is just a rectangle showing the incorrect dimensions inasmuch as on one side the length of the property is shown as 75 feet whereas the other side of the length is shown as 35 feet, similarly the breadth of the rectangular plan is shown as 75 feet and breadth of plot on the other side is shown as 35 feet. No existing construction has been shown in the plan, thought the affidavit of undertaking stipulates that the plan shows the existing construction on the plot in possession of said members. WP(C) 9131/2008 Page 7 of 13
The plot area is shown to be 2625 sq.ft., however, the column for built up area is blank. The ground floor is stated to be 100% covered. This is apparently is in complete defiance of the orders passed by this Court and appears to be a deliberate attempt to mislead this court as the learned counsel for the petitioner had repeatedly insisted that the undertaking and the copies of the plans were filed before Delhi Development Authority and the respondent/DDA is not entitled to take any action against the members of the petitioner.
Though the undertakings had to be filed before this Court along with the plans showing the existing construction, however, why they were filed before the DDA and that too of only 27 members is not explained. Learned counsel for the petitioner has also defended filing of the plans with the undertaking before Delhi Development Authority relying on the order dated 7th January, 2009 and order dated 4th May, 2009 whereas both the orders do not reveal in any manner that the undertakings and the plans had to be filed before the respondent/DDA.
After the affidavit and the copy of the plan of one of the member which was filed before the respondent/DDA, which has been detailed hereinabove, was seen by the counsel for the petitioner, learned counsel states that this affidavit has not been filed by the petitioner through the WP(C) 9131/2008 Page 8 of 13 Secretary and deposition on affidavit filed by Major Sukhdev Singh Rai, resident of Plot No.867 was also not filed by the secretary of the petitioner. If the undertaking on affidavit and plan showing the existing structure were not filed by the petitioner, then why it was claimed by the counsel for the petitioner that undertakings on affidavit and appropriate plans of twenty seven members have been filed, has not been explained by the petitioner. The petitioner in the facts and circumstances has apparently deliberately tried to mislead this Court and availed the benefit of no action by the respondent during all this time.
The petitioner in the facts and circumstances has concealed the material information and has also not complied with the directions given by this Court for the interim order which was passed in favor of the petitioner society. The petitioner society is, therefore, not entitled for the relief claimed in the application seeking a blanket restraint against the respondent/DDA from interfering with the possession of the members of the petitioner from their houses/built-up structures. The application is, therefore, dismissed with a cost of Rs.30,000/- payable by the petitioner to the respondent.
WP(C) 9131/2008 Page 9 of 13 Court on its own Motion The petitioner/ applicant is a society and the application CM no.10069/2009 has been filed through the Secretary, Shri Umed Singh, son of Shri Shree Lal alleging to be the Secretary of petitioner society. It is deposed by the Secretary that he is conversant with the facts and circumstances of the case and the affidavit is verified stipulating categorically that `nothing material has been concealed there from'.
The application stipulates that the respondent/DDA tried to raise the boundary wall in the plot of Smt.Bimla Chaudhary who is one of the member of the petitioner society. It is further asserted that the name of Smt.Bimla Chaudhary is given at serial No.74 of the list of members and she is in occupation and possession of plot NO.74A, situated within the boundary of the petitioner's colony. The allegation is also made that the officials had come to the members of the colony and had threatened that they shall dispossess her from plot No.74A.
Learned counsel for the respondents, who has appeared on advance notice in the application, has pointed out that the first appeal of Smt.Bimla Chaudhary bearing RFA No.381/2004 titled Bimla Chaudhary v. UOI & Others was dismissed by a single Judge by order WP(C) 9131/2008 Page 10 of 13 dated 15th July, 2009 pursuant whereto the action was contemplated against Smt. Bimla Chaudhary.
This fact seems to have been deliberately concealed by the petitioner. Learned counsel for the petitioner/applicant on instructions from the petitioner states that the deponent, secretary of the society, was not aware of this fact. In case the petitioner was not aware of this fact, in the application the allegation regarding Smt.Bimla Chaudhary should not have been made. Apparently the petitioner has misstated the facts.
The petitioner also contended that twenty seven members have filed the undertaking on affidavits along with plans showing the existing construction. When confronted with the affidavit of Major Sukhdev Singh Rai which also though deposed that the existing construction is shown in the plan, however, the plan does not show any construction, stated that the said affidavit was not filed by the petitioner. If the said affidavit was not filed the petitioner should not have contended that twenty seven members have filed undertakings and undertakings on affidavits.
The petitioners in the circumstances have misled this Court and apparently have deliberately made false averments and in the WP(C) 9131/2008 Page 11 of 13 circumstances have interfered due course of justice. The petitioner secretary Shri Umed Singh is therefore, liable for committing contempt of this Court.
Consequently issue notice to Shri Umed Singh, secretary of the petitioner association as to why proceedings for committing contempt of this Court be not taken against him. Mr.Tomar Advocate accepts notice on behalf of Shri Umed Singh and seeks time to file the reply. Reply be filed within four weeks. Shri Umed Singh is directed to be present on the next date of hearing. List on 14th September, 2009 W.P.(C.) No.9131/2008 In the facts and circumstances, issue notice to Major Sukhdev Singh Rai son of Shri G.S. Rai resident of 867, JNU Road, Village Kishan Garh, New Delhi for his appearance on September 14, 2009.
Next date of hearing, i.e., 26th August, 2009 is cancelled. Since the alleged plans showing existing construction and the undertakings of only 26 persons are alleged to have been filed, as the counsel for the plaintiff claimed that the affidavit of Major Sukhdev Singh Rai was not filed by the petitioner, DDA shall be entitled to take appropriate action in accordance with law against the members of WP(C) 9131/2008 Page 12 of 13 society who have not filed the undertakings on the affidavit along with plans showing the existing structures including Smt.Bimla Chaudhary whose regular first appeal has already been dismissed by this court and whose prayer for injunction has been declined with a costs of Rs.15,000 on her.
List on 14th September, 2009 Dasti.
August 17, 2009 ANIL KUMAR, J.
'Dev'
WP(C) 9131/2008 Page 13 of 13