Delhi District Court
Jai Parkash vs . Mcd And Anr. on 1 August, 2013
IN THE COURT OF SHRI. ASHISH AGGARWAL, ADDITIONAL SENIOR CIVIL
JUDGE CUM JUDGE, SMALL CAUSES COURT CUM GUARDIAN JUDGE, NORTH
WEST DISTRICT, ROHINI COURTS, DELHI.
Suit No.225/08/07.
Jai Parkash Vs. MCD and Anr.
ORDER
1. A brief reference to the facts of the case would be appropriate.
2. The plaintiff filed the present suit claiming to be coowner of the land comprised in Khasra no. 262/258/217/4 in Village Bharola, Delhi, which is stated to include the land of Adarsh Nagar, Delhi (hereinafter referred to as "the suit property"). It is stated in the plaint that defendant no. 2 has allegedly purchased some land from another coowner of the land. It is further stated in the plaint that the plaintiff did not authorize any person to sell his share in the land. In a suit filed by the plaintiff, the Tehsildar responded and admitted that plaintiff is the coowner of the land. The defendant no. 2, in derogation of rights of the plaintiff, started raising construction on the said land without obtaining any sanctioned plan. Plaintiff made various complaints in this regard and prayed for stopping the illegal and unauthorized construction. However no action was taken by the defendant no.1 i.e. Municipal Corporation of Delhi. On this basis, the plaintiff has filed the present suit praying for permanent injunction restraining defendant no.2 from raising unauthorized construction and for mandatory injunction directing demolition of the unauthorized structure already raised. Suit no. 225/08/07 Jai Parkash Vs. MCD and Anr. 1/26
3. Written statement was filed by the defendant no.1 Municipal Corporation of Delhi. It was stated in the written statement that no construction activity was found on the suit property.
4. Defendant no. 2 filed its written statement. Defendant no. 2 stated that he is in uninterrupted and exclusive possession of 2700 sq. yds. of the land. Defendant no. 2 has further stated that he is not carrying out any construction.
5. The suit came up for hearing before the Ld. Predecessor of the Court. On 24.05.2007, Ld. Predecessor of the Court noted as follows:
"Counsel for the defendant no. 2 has stated that no illegal or unauthorized construction has been done by him at the disputed site and even in future no illegal or unauthorized construction shall be done by him without sanction from concerned authorities including MCD."
6. On 16.07.2007, Ld. Predecessor of the Court observed that the status report filed by the Municipal Corporation of Delhi is vague and it does not mention whether unauthorized construction exists in the suit property. Defendant no. 1 was directed to file a fresh report.
7. On 02.08.2007, Ld. Predecessor of the court noted that status report has been filed by Municipal Corporation of Delhi in which it is reported that defendant no. 2 did not have any sanctioned building plan and therefore, the structure raised by the defendant no. 2 was illegal. The court directed the Municipal Corporation of Delhi to file its report of action taken against the suit property.
8. From the above orders, it appears that a false and misleading statement was made by counsel for defendant no. 2 on 24.05.2007 to the effect that there is no unauthorized construction on the suit Suit no. 225/08/07 Jai Parkash Vs. MCD and Anr. 2/26 property. Unauthorized construction refers to construction carried out in violation of the Delhi Municipal Corporation Act, 1957. Construction which has been raised in breach of, or without, sanctioned plan, and which thereby attracts Section 343 of the Delhi Municipal Corporation Act, 1957 amounts to unauthorized construction. In the present case, as per defendant no.1, no building plan was got sanctioned prior to raising of construction. The defendant no. 2 has also not stated in its written statement that it had got the building plan sanctioned before raising the construction. Even subsequently, no sanctioned building plan has been placed on record by the defendant no.2. It is not the case of the defendant no.2 that any such plan was got sanctioned before raising construction. The structure raised by the defendant no. 2 is clearly unauthorized. Yet, the defendant no.2 has, in the statement recorded on 24.05.2007, asserted that it has not raised any unauthorized construction. The stand of the defendant no. 2 is contrary to the record, false and misleading. Even if it is assumed that the said construction is protected by the provisions of the National Capital Territory of Delhi Laws (Special Provisions) Second Act, 2011, that would only imply that the unauthorized construction carried out before the stipulated date would not be demolished till 31.12.2014. It does not imply that the construction would cease to be unauthorized. By the said Act, only demolition action has been restrained. The status of the structure has not been converted from unauthorized to "lawful". Further, on 24.05.2007, when the aforesaid statement was made by the counsel for defendant no. 2, Suit no. 225/08/07 Jai Parkash Vs. MCD and Anr. 3/26 presumably on the instructions of defendant no. 2, the aforementioned statute had not been enacted and therefore the construction was indubitably unauthorized. Yet, the defendant no. 2 chose to make a false statement before the court with impunity.
9. The record also shows that the undertaking of defendant no.2 that it would not raise any unauthorized construction has been breached as some construction was made subsequent to the making of the said statement, during the pendency of the suit, and without sanctioned plan. The status report dated 23.11.2012 filed by defendant no.1 shows that when the premises was inspected on 14.09.2010, the third floor was being constructed without obtaining any sanctioned plan. As per the report, after following the due process of law, demolition orders were passed. This shows that the defendant no.2 acted in breach of its undertaking not to carry out any unauthorized construction.
10. Another fact which is reflected from the status reports filed by defendant no.1 is that the officials of Municipal Corporation of Delhi were in collusion with defendant no.2. It is strange that even after institution of the suit, defendant no.1 did not disclose to the Court the fact that the structure raised by the defendant no.2 was unauthorized. Defendant no.1 skirted this issue in its written statement although this is indeed the prime grievance of the plaintiff. Even in its status report filed before the court, the defendant no.1 (MCD) did not disclose whether the structure was authorized or unauthorized. It is only when the court impelled the defendant no.1 to file a detailed report that this fact was disclosed Suit no. 225/08/07 Jai Parkash Vs. MCD and Anr. 4/26 by its officials. Even then and after passing of the direction for filing of action taken report on 02.08.2007, defendant no.1 did not initiate any steps against the aforesaid unauthorized structure. This leaves no room for doubt that officials of the defendant no.1 have been trying to protect the unauthorized construction raised by defendant no.2. This demonstrates willful dereliction of duties by officers of Municipal Corporation of Delhi.
11. This view is strengthened by perusal of the repeated orders passed by Ld. Predecessors of the Court. The record shows that the defendants kept seeking adjournment on one pretext or another. From the order sheet, it appears that in order to prevent action against the aforesaid unauthorized construction, the defendant no. 2 moved an application for regularization of the said unauthorized construction. The application was kept pending by the defendant no. 1 so as to avoid initiating any action. As per orders dated 16.08.2007, 22.09.2007, 06.10.2007 and subsequent orders, it is clear that the application for regularization was not decided for the next two years. The officials of defendant no. 1 kept avoiding filing of status report. Finally, on 22.05.2010, Ld. Predecessor of the court observed that "there is a deliberate attempt on the part of the Municipal Corporation of Delhi to either delay this trial or conceal the exact status of the unauthorized construction or the encroachment made by the defendant no. 2 in the area". The court directed the executive engineer of defendant no. 1 to file his report regarding the unauthorized construction and encroachment made by defendant no. 2. On the next date i.e. 31.07.2010, again Suit no. 225/08/07 Jai Parkash Vs. MCD and Anr. 5/26 counsel for defendant no.1 sought adjournment to file status report. The Ld. Predecessor of the court granted last opportunity to file the status report. On 09.08.2010, again an incomplete status report was filed on behalf of defendant no.1. Ld. Predecessor of the court granted one more opportunity to file the complete status report.
12. On 05.11.2012, the Ld. Predecessor of the Court observed as under:
"The plaintiff is forced to approach the court due to inaction of the defendant no.1 who is regulatory body for the construction activities in the territory of NCT of Delhi and admittedly unauthorized construction has been raised by defendant no.1 and action as per MCD Act has not been taken by the officials."
13. A fresh status report was filed before the Ld. Predecessor of the Court on 26.11.2012. As per report dated 23.07.2012, the defendant no.2 has undertaken fresh construction without obtaining sanctioned plan. It was stated in the report that the said construction had been noticed during inspection dated 14.09.2010.
14. On 06.02.2013, it was stated before the Ld. Predecessor of the Court that after joint inspection, an application for regularization/ compounding will be decided. On 17.05.2013, again a similar plea was raised before this Court and adjournment was obtained to decide the regularization application. On 22.07.2013, a fresh report was filed before this Court. As per the said report, the application for regularization of the suit property has been rejected by defendant no.1. That brings the case to the present stage.
15. Counsel for defendant no.2 has, on 22.7.2013, submitted that he wishes to submit an application to defendant no.1 for review of the rejection of application for regularization. He has prayed for Suit no. 225/08/07 Jai Parkash Vs. MCD and Anr. 6/26 adjournment.
16. Upon perusal of the record of the case and after hearing Ld. Counsel for the parties, I am of the opinion that this is a classic case which demonstrates the manner in which the consistent orders of the Court spanning a period of six years have been willfully disobeyed, circumvented and defeated by the defendants in a calculated manner so as to somehow prevent the Court from examining their manifest illegality. During the last six years, the defendants have been evading scrutiny of their actions by submitting misleading pleas. The plaint filed by the plaintiff runs into two pages. It states that unauthorized construction has been raised on the suit premises by defendant no.2 and that defendant no.1 is not taking any action against it. It is patently clear that the suit is directed against unauthorized construction raised without obtaining any sanctioned plan. None of the defendants addressed this issue in the written statement. They did not disclose that the construction was raised without any sanctioned plan. Defendant no.2 claimed that the construction was not unauthorized. Defendant no.1, despite being a public statutory body and being obliged to place the true facts before the Court, also did not comment on the legality of the construction. Several status reports were filed by defendant no.1 before this Court. Most of the status reports were incomplete and defective since they did not deal with the real issue involved in the case. Further, as per the status report dated 23.11.2012, on an inspection of the suit property by the officials of defendant no. 1 on 14.09.2010, it was found that third floor on the suit property was Suit no. 225/08/07 Jai Parkash Vs. MCD and Anr. 7/26 being constructed without obtaining any sanctioned plan. The said construction was booked. This report assumes significance in light of the stance of the defendants. On 24.05.2007, counsel for defendant no.2 had stated on behalf of defendant no.2 that in future, no unauthorized construction will be carried out by defendant no.2 without obtaining sanctioned plan. Yet, in flagrant disregard of the said undertaking, defendant no.2 was found carrying out further construction on 14.09.2010 without obtaining sanctioned plan. This fact was also concealed by defendant no.1 from this Court until the Court had passed certain orders against the officials of defendant no.1. Further, the very fact that the regularization application had been preferred by the defendant no.2 implies an acknowledgment on its part that defendant no.2 has carried out unauthorized construction. There is no gainsaying that only unauthorized construction is required to be regularized. Further, it is noticed that it is only when the defendant no.1 revealed the existence of unauthorized construction, the defendant no.2 expressed its intention to move a regularization application. After filing the said application, its disposal was inordinately delayed so as to preclude the Court from passing orders of demolition. Finally, when the application was dismissed, the defendant no.2, in order to prevent demolition, stated that he wishes to seek review of the order of rejection.
17. It will be apt to refer to the decision of Hon'ble Supreme Court in the case of Esha Ekta Apartments Cooperative Vs. Housing Society Limited and others Civil Appeal no. 7934 of 2012 dated 27.02.2013. In Suit no. 225/08/07 Jai Parkash Vs. MCD and Anr. 8/26 that case, it was observed as under:
"In last five decades, the provisions contained in various municipal laws for planned development of the areas to which such laws are applicable have been violated with impunity in all the cities, big or small, and those entrusted with the task of ensuring implementation of the master plan, etc., have miserably failed to perform their duties. It is highly regrettable that this is so despite the fact that this Court has, keeping in view the imperatives of preserving the ecology and environment of the area and protecting the rights of the citizens, repeatedly cautioned the concerned authorities against arbitrary regularization of illegal constructions by way of compounding and otherwise. In Friends Colony Development Committee v. State of Orissa (2004) 8 SCC 733, this Court examined the correctness of an order passed by the Orissa High Court negating the appellant's right to be heard in a petition filed by the builder who had raised the building in violation of the sanctioned plan. While upholding the appellant's plea, the twoJudge Bench observed:
"...Builders violate with impunity the sanctioned building plans and indulge in deviations much to the prejudice of the planned development of the city and at the peril of the occupants of the premises constructed or of the inhabitants of the city at large. Serious threat is posed to ecology and environment and, at the same time, the infrastructure consisting of water supply, sewerage and traffic movement facilities suffers unbearable burden and is often thrown out of gear. Unwary purchasers in search of roof over their heads and purchasing flats/apartments from builders, find themselves having fallen prey and become victims to the designs of unscrupulous builders. The builder conveniently walks away having pocketed the money leaving behind the unfortunate occupants to face the music in the event of unauthorized constructions being detected or exposed and threatened with demolition. Though the local authorities have the staff consisting of engineers and inspectors whose duty is to keep a watch on building activities and to promptly stop the illegal constructions or deviations coming up, they often fail in discharging their duty. Either they don't act or do not act promptly or do connive at such activities apparently for illegitimate considerations. If such activities are to stop some Suit no. 225/08/07 Jai Parkash Vs. MCD and Anr. 9/26 stringent actions are required to be taken by ruthlessly demolishing the illegal constructions and noncompoundable deviations. The unwary purchasers who shall be the sufferers must be adequately compensated by the builder. The arms of the law must stretch to catch hold of such unscrupulous builders..."
The conduct of the builder in the present case deserves to be noticed. He knew it fully well what was the permissible construction as per the sanctioned building plans and yet he not only constructed additional builtup area on each floor but also added an additional fifth floor on the building, and such a floor was totally unauthorised. In spite of the disputes and litigation pending he parted with his interest in the property and inducted occupants on all the floors, including the additional one. Probably he was under
the impression that he would be able to either escape the clutches of the law or twist the arm of the law by some manipulation. This impression must prove to be wrong.
In all developed and developing countries there is emphasis on planned development of cities which is sought to be achieved by zoning, planning and regulating building construction activity. Such planning, though highly complex, is a matter based on scientific research, study and experience leading to rationalization of laws by way of legislative enactments and rules and regulations framed thereunder. Zoning and planning do result in hardship to individual property owners as their freedom to use their property in the way they like, is subjected to regulation and control. The private owners are to some extent prevented from making the most profitable use of their property. But for this reason alone the controlling regulations cannot be termed as arbitrary or unreasonable. The private interest stands subordinated to the public good. It can be stated in a way that power to plan development of city and to regulate the building activity therein flows from the police power of the State. The exercise of such governmental power is justified on account of it being reasonably necessary for the public health, safety, morals or general welfare and ecological considerations; though an unnecessary or unreasonable intermeddling with the private ownership of the property may not be justified.
The municipal laws regulating the building construction activity may Suit no. 225/08/07 Jai Parkash Vs. MCD and Anr. 10/26 provide for regulations as to floor area, the number of floors, the extent of height rise and the nature of use to which a builtup property may be subjected in any particular area. The individuals as property owners have to pay some price for securing peace, good order, dignity, protection and comfort and safety of the community. Not only filth, stench and unhealthy places have to be eliminated, but the layout helps in achieving family values, youth values, seclusion and clean air to make the locality a better place to live. Building regulations also help in reduction or elimination of fire hazards, the avoidance of traffic dangers and the lessening of prevention of traffic congestion in the streets and roads. Zoning and building regulations are also legitimised from the point of view of the control of community development, the prevention of overcrowding of land, the furnishing of recreational facilities like parks and playgrounds and the availability of adequate water, sewerage and other governmental or utility services. Structural and lot area regulations authorise the municipal authorities to regulate and restrict the height, number of storeys and other structures; the percentage of a plot that may be occupied; the size of yards, courts and open spaces; the density of population; and the location and use of buildings and structures. All these have in our view and do achieve the larger purpose of the public health, safety or general welfare. So are front setback provisions, average alignments and structural alterations. Any violation of zoning and regulation laws takes the toll in terms of public welfare and convenience being sacrificed apart from the risk, inconvenience and hardship which is posed to the occupants of the building.
Though the municipal laws permit deviations from sanctioned constructions being regularised by compounding but that is by way of exception. Unfortunately, the exception, with the lapse of time and frequent exercise of the discretionary power conferred by such exception, has become the rule. Only such deviations deserve to be condoned as are bona fide or are attributable to some misunderstanding or are such deviations as where the benefit gained by demolition would be far less than the disadvantage suffered. Other than these, deliberate deviations do not deserve to be condoned and compounded. Compounding of deviations Suit no. 225/08/07 Jai Parkash Vs. MCD and Anr. 11/26 ought to be kept at a bare minimum. The cases of professional builders stand on a different footing from an individual constructing his own building. A professional builder is supposed to understand the laws better and deviations by such builders can safely be assumed to be deliberate and done with the intention of earning profits and hence deserve to be dealt with sternly so as to act as a deterrent for future. It is common knowledge that the builders enter into underhand dealings. Be that as it may, the State Governments should think of levying heavy penalties on such builders and therefrom develop a welfare fund which can be utilised for compensating and rehabilitating such innocent or unwary buyers who are displaced on account of demolition of illegal constructions."
In Royal Paradise Hotel (P) Ltd. v. State of Haryana and Ors. (2006) 7 SCC 597, this Court noted that the construction had been made in the teeth of notices issued for stopping the unauthorized construction and held that no authority administering municipal laws can regularize the constructions made in violation of the Act. Some of the observations made in that judgment are extracted below:
"Whatever it be, the fact remains that the construction was made in the teeth of the notices and the directions to stop the unauthorized construction. Thus, the predecessor of the appellant put up the offending construction in a controlled area in defiance of the provisions of law preventing such a construction and in spite of notices and orders to stop the construction activity. The constructions put up are thus illegal and unauthorized and put up in defiance of law. The appellant is only an assignee from the person who put up such a construction and his present attempt is to defeat the statute and the statutory scheme of protecting the sides of highways in the interest of general public and moving traffic on such highways. Therefore, this is a fit case for refusal of interference by this Court against the decision declining the regularization sought for by the appellant. Such violations cannot be compounded and the prayer of the appellant was rightly rejected by the authorities and the High Court was correct in dismissing the Writ Petition filed by the appellant. It is time that the message goes aboard that those who defy the law would not be permitted to Suit no. 225/08/07 Jai Parkash Vs. MCD and Anr. 12/26 reap the benefit of their defiance of law and it is the duty of High Courts to ensure that such definers of law are not rewarded. The High Court was therefore fully justified in refusing to interfere in the matter. The High Court was rightly conscious of its duty to ensure that violators of law do not get away with it. We also find no merit in the argument that regularization of the acts of violation of the provisions of the Act ought to have been permitted. No authority administering municipal laws and other laws like the Act involved here, can encourage such violations. Even otherwise, compounding is not to be done when the violations are deliberate, designed, reckless or motivated. Marginal or insignificant accidental violations unconsciously made after trying to comply with all the requirements of the law can alone qualify for regularization which is not the rule, but a rare exception. The authorities and the High Court were hence right in refusing the request of the appellant."
xxx xxx We would like to reiterate that no authority administering municipal laws and other similar laws can encourage violation of the sanctioned plan. The Courts are also expected to refrain from exercising equitable jurisdiction for regularization of illegal and unauthorized constructions else it would encourage violators of the planning laws and destroy the very idea and concept of planned development of urban as well as rural areas.
In the result, the appeals and the transferred case are dismissed and it is declared that there is no impediment in the implementation of notices issued by the Corporation under Section 351 of the 1888 Act and order dated 3/8.12.2005 passed by the competent authority. The Corporation is expected to take action in the matter at the earliest. "
18. Regarding the applicability of Delhi Municipal Corporation Act to the area in question, reference may be made to the case of Delhi Corporation Vs. Hira Lal AIR 1972 Delhi 29 wherein it was held that the Delhi Municipal Corporation Act applies to such areas.
19. In light of the aforesaid, the Court does not deem it fit to allow perpetuation of the illegal act of unauthorized construction carried Suit no. 225/08/07 Jai Parkash Vs. MCD and Anr. 13/26 out by the defendant no.2. Under the Delhi Municipal Corporation Act, 1957, it is the duty of the defendant no.1 to demolish unauthorized construction. The defendant no.1 has already arrived at the conclusion that the construction carried out by the defendant no.2 is unauthorized. Show cause notice had been issued. The matter was decided against the defendant no.2. The demolition order has already been passed. The regularization application has already been dismissed. No appeal has been filed before the Ld. Appellate Tribunal. Further, it is relevant to note that the recent unauthorized construction has not been removed in totality despite the fact that it is not covered by the provisions of National Capital Territory of Delhi Laws (Special Provisions) Second Act, 2011. There is no reason for the defendant no.1 to continue to abdicate its duty to demolish the unauthorized construction. The defendant no.1 is therefore directed to demolish the said unauthorized construction in accordance with law within two weeks from today. Report of compliance shall be filed within one month.
20. An application under Section 340 of Code of Criminal Procedure filed on behalf of plaintiff is also pending. By the said application, the plaintiff has prayed for initiating an enquiry against the officials of defendant no.1 for the offences under Sections 191/192/193/199/200/209 of Indian Penal Code in terms of Sections 340 and 195 of Code of Criminal Procedure.
21. The plaintiff has stated in the application that the defendant no.1 is colluding with the defendant no.2 for protecting the unauthorized Suit no. 225/08/07 Jai Parkash Vs. MCD and Anr. 14/26 construction raised by the defendant no. 2 on the suit property. It is further alleged by the plaintiff that the status reports filed by the respondents on behalf of defendant no.1 are inconsistent. It is pleaded that defendant no.2 has filed documents on record to state that they are in occupation of 4048.32 square metres of land at the disputed suit property while the defendant no.1 has stated in its status report dated 02.08.2007 that the defendant no.2 is occupying only 2266.76 square metres of the plot. Further, it is stated that the extent of covered area in the plot occupied by the defendant no.2 is inconsistent, which becomes apparent on comparison of status report with the documents relied upon by defendant no.2. The correctness of the status reports is disputed by the plaintiff. It has been alleged that subsequent status reports filed by the defendant no.1 before the Court have not disclosed complete facts regarding the unauthorized construction at the suit property and that the reports only refer to small encroachments through chhajjas and pillars in the side lane of the building occupied by defendant no.2. It has also been alleged by the plaintiff that the defendant no.1 has filed a rough sketch of the building at the suit property instead of a certified copy of the building plan to intentionally conceal the existence of the true dimensions of the building for misleading this Court.
22. The defendant no.1 has filed reply to the said application wherein the defendant no.1 has attributed ulterior motives and mala fide intentions to the plaintiff. The defendant no.1 states that the said application has been filed only to pressurize the defendant no.1. The Suit no. 225/08/07 Jai Parkash Vs. MCD and Anr. 15/26 defendant no.1 submits that the provisions of Section 340 of Code of Criminal Procedure are not attracted in the present case as the officials of the defendant no.1 have always complied with the directions passed by this Court and no forged and fabricated documents have been filed before this Court.
23. It is seen from the record that the defendant no.2 had filed self assessment returns of property tax for the year 200405 regarding the building at the suit property. In the said document, the defendant no. 2 has stated that the plot area was 4048.32 square metres. The document also shows the floor wise break up of the covered area.
Contrary to this, the status report dated 2.8.2007 filed by the defendant no.1 states that the plot area is only 2266.76 square metres. There is a wide disparity in the figures. It is difficult to comprehend as to how the status report dated 02.08.2007 has been prepared by the defendant no.1 which contradicts the admitted position of the defendant no.2. Further, the defendant no. 1 has accepted property tax returns from the defendant no.1 on the building at the suit property for a total area of 4048.32 square metres. After accepting tax at the said area, it is unfathomable that the plot area measured by the defendant no.1 is only 2266.76 square metres.
24. The correctness of the status report is doubtful. It is clearly inconsistent with the property tax return. If it is found that an incorrect declaration is made in the status report, it would imply commission of offence under Sections 193, 196 and 199 of Indian Penal Code. That would invite prosecution under Section 340 of Suit no. 225/08/07 Jai Parkash Vs. MCD and Anr. 16/26 Code of Criminal Procedure.
25. Similarly, it has already been noted above that the defendant no.2 has, on 24.05.2007, made an apparently incorrect statement that no unauthorized construction has been carried out by it. If it is found that this statement was made deliberately and knowing it to be false, it would entail punishment under Sections 193 and 196 of Indian Penal Code.
26. In this background, I am guided by the recent decision of Hon'ble High Court of Delhi in the case of Sanjeev Kumar Mittal Vs. The State, Cr. M (M) No.6721/2010 decided on 18.11.2010. In that case, the Hon'ble High Court of Delhi comprehensively dealt with the issue of litigants raising false pleas, and made the following observations:
"This case demonstrates the extent and type of malaise which clogs the wheels of the justice delivery system. It is an instance of how litigants make false averments of facts in the pleadings and raise untenable contentions with impunity. Thereafter litigation, on controversies supposedly arising out of these false averments are dragged on for years in the hope that the other side will succumb to buy peace. If the other side does not so settle', in the end, he is hardly compensated and remains a loser. There is little fear of law in the minds of the unscrupulous.
xxx xxx Inasmuch as the facts of this case are demonstrative and this Court cannot be oblivious to the problems afflicting the judicial system, I shall now examine certain general issues on how litigation with false claims is filed, or false defences are put forward, and then continues to remain pending, consuming the Court's time and resources. The result is that courts are overloaded and there is delay in disposal."
The Hon'ble High Court of Delhi quoted the following observations Suit no. 225/08/07 Jai Parkash Vs. MCD and Anr. 17/26 from the case of Dalip Singh v. State of U.P., (2010) 2 SCC 114:
"The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final."
The Hon'ble High Court of Delhi quoted observations from the case of Padmawati and Ors v. Harijan Sewak Sangh, 154 (2008) DLT 411, as under:
"The case at hand shows that frivolous defences and frivolous litigation is a calculated venture involving no risks situation. You have only to engage professionals to prolong the litigation so as to deprive the rights of a person and enjoy the fruits of illegalities. I consider that in such cases where Court finds that using the Courts as a tool, a litigant has perpetuated illegalities or has perpetuated an illegal possession, the Court must impose costs on such litigants which should be equal to the benefits derived by the litigant and harm and deprivation suffered by the rightful person so as to check the frivolous litigation and prevent the people from reaping a rich harvest of illegal acts through the Courts. One of the aim of every judicial system has to be to discourage unjust enrichment using Courts as a tool. The costs imposed by the Courts must in all cases should be the real costs equal to deprivation suffered by the rightful person.
xxxxxx Before parting with this case, I consider it necessary to pen down Suit no. 225/08/07 Jai Parkash Vs. MCD and Anr. 18/26 that one of the reasons for overflowing of court dockets is the frivolous litigation in which the Courts are engaged by the litigants and which is dragged as long as possible. Even if these litigants ultimately loose the lis, they become the real victors and have the last laugh. This class of people who perpetuate illegal acts by obtaining stays and injunctions from the Courts must be made to pay the sufferer not only the entire illegal gains made by them as costs to the person deprived of his right and also must be burdened with exemplary costs. Faith of people in judiciary can only be sustained if the persons on the right side of the law do not feel that even if they keep fighting for justice in the Court and ultimately win, they would turn out to be a fool since winning a case after 20 or 30 years would make wrong doer as real gainer, who had reaped the benefits for all those years. Thus, it becomes the duty of the Courts to see that such wrong doers are discouraged at every step and even if they succeed in prolonging the litigation due to their money power, ultimately they must suffer the costs of all these years long litigation. Despite settled legal positions, the obvious wrong doers, use one after another tier of judicial review mechanism as a gamble, knowing fully well that dice is always loaded in their favour, since even if they lose, the time gained is the real gain. This situation must be redeemed by the Courts."
The Hon'ble High Court of Delhi noted:
"If there is falsehood in the pleadings (plaint, written statement or replication), the task of the Court is also multiplied and a lis that could be decided in a short time, then takes several years. It is the legal duty of every party to state in the pleadings the true facts and if they do not, they must suffer the consequences and the Court should not hold back from taking action.
A similar sentiment had been expressed by the Karnataka High Court in A. Hiriyanna Gowda v. State of Karnataka, 1998 Cri.L.J. 4756:
"The present application is filed under Section 340, Cr. P.C. and undoubtedly involves a power that the Courts have been seldom exercising. It has unfortunately become the order of the day, for Suit no. 225/08/07 Jai Parkash Vs. MCD and Anr. 19/26 false statements to be made in the course of judicial proceedings even on oath and attempts made to substantiate these false statements through affidavits or fabricated documents. It is very sad when this happens because the real backbone of the working of the judicial system is based on the element of trust and confidence and the purpose of obtaining a statement on oath from the parties or written pleadings in order to arrive at a correct decision after evaluating the respective positions. In all matters of fact therefore, it is not only a question of ethics, but an inflexible requirement of law that every statement made must be true to the extent that it must be verified and correct to the knowledge of the person making it. When a client instructs his learned Advocate to draft the pleadings, the basic responsibility lies on the clients because the Advocate being an Officer of the Court acts entirely on the instructions given to him, though the lawyer will not be immune from even a prosecution. If the situation is uncertain it is for his client to inform his learned Advocate and consequently if false statements are made in the pleadings the responsibility will devolve wholly and completely on the party on whose behalf those statements are made.
It has unfortunately become common place for the pleadings to be taken very lightly and for nothing but false and incorrect statements to be made in the course of judicial proceedings, for fabricated documents to be produced and even in cases where this comes to the light of the Court the party seems to get away because the Courts do not take necessary counteraction. The disastrous result of such leniency or indulgence is that it sends out wrong signals. It creates almost a licence for litigants and their lawyers to indulge in such serious malpractices because of the confidence that no action will result. To my mind, therefore, the fact that the petitioner has pressed in this application requires to be commended because it is a matter of propriety and it is very necessary at least in a few glaring cases that an example be made of persons who are indulging in such malpractices which undermine the very administration of justice dispensation system and the working of the Courts. This will at least have a deterrent effect on others.
It is true that the power that is now being exercised is seldom Suit no. 225/08/07 Jai Parkash Vs. MCD and Anr. 20/26 exercised, but I am firmly of the view that in the interest of the purity of the working the Courts that it is absolutely essential to take such corrective action whenever an instance of the present type arises."
A Division Bench of this court over two decades back in Rajendra Jaina Towers (P) Ltd. v. Delhi Development Authority 33 (1987) DLT 216 held as under:
"All the statements in paragraph 11, to which I have referred, were material for the purpose of taking a decision in the case. As I have tried to show, they were deliberately made and carefully worded. Their object was to mislead and overreach the court. The perjury was daring and atrocious. Probably, Mr. Rajender Jain thought it was worth taking the risk because the courts are so reluctant to prosecute for perjury. That is the general impression which has caused perjury to become so rampant in our courts and resulted in vexatious litigation. It is clearly expedient in the interests of justice, that Mr. Rajender Jain be prosecuted for the statements made in paragraph 11 of the petition, which he has incorporated by reference in his affidavit."
The Court ordered the Registrar of this court to make a complaint in writing against Mr. Rajender Jain, for having committed offences under Sections 191, 192 and 193 of the Indian Penal Code to the Magistrate having jurisdiction. If this Court were to go by a general impression, the position has not improved but only worsened. It is time to take appropriate action so that parties, when they file their pleadings, do so with a sense of responsibility and if averments therein, or any evidence in support, is found to be false, the wrongdoer is not able to escape the punishment prescribed by law. xxxxxx In fact, restitution, which includes compensation, and levy of costs, is not sufficient where there is, in the pleadings before the Court, falsehood, concealment or reliance upon forged documents. There it also calls for triggering into motion the penal laws, i.e., making of a complaint under Section 340 Cr.P.C. The more important part is of punishment to prevent, in the first instance, litigants from making false averments before a court of law. While the punishment prescribed by law is deterrent, the probability of prosecution, and thereafter conviction, should also be sufficient to deter such Suit no. 225/08/07 Jai Parkash Vs. MCD and Anr. 21/26 conduct. A party, whether he is a petitioner or a respondent, or a witness, has to respect the solemnity of the proceedings in the court and he cannot play with the courts and pollute the stream of justice. It is cases like this, with false claims (or false defences) which load the courts, cause delays, consume judicial time and bring a bad name to the judicial system. This case is a sample where the facts are glaring. Even if they were not so glaring, once falsehood is apparent, to not take action would be improper.
The judicial system has a right and a duty to protect itself from such conduct by the litigants and to ensure that where such conduct has taken place, the matter is investigated and reaches its logical conclusion and depending on the finding which is returned in such proceedings, appropriate punishment is meted out. It is perhaps the general reluctance, as also noticed by the Hon'ble Supreme Court in Swaran Singh v. State of Punjab, (2000) 5 SCC 668:
"Perjury has also become a way of life in the law courts. A trial Judge knows that the witness is telling a lie and is going back on his previous statement, yet he does not wish to punish him or even file a complaint against him. He is required to sign the complaint himself which deters him from filing the complaint."
that has made the situation reach such levels where pleadings contain false averments and parties make false averments with impunity in the hope that in all probability the opposite party will cough up something, and even if he does not, in the end he will have the last laugh, for a prosecution of perjury, although consciously committed and persisted in, will have a probability of punishment as good as nil. The gain far exceeds the risk. In an effort to redeem the situation, not only realistic costs and full compensation in favour of the winning party against the wrongdoer are required, but, depending on the gravity of the wrong, penal action against the wrongdoers is also called for. Unless the judicial system protects itself from such wrongdoing by taking cognizance, directing prosecution, and punishing those found guilty, it will be failing in its duty to render justice to the citizens. Litigation caused by false claims and defences will come to be placed before the courts, load the dockets and delay delivery of justice to those who are genuinely in need of it.
Suit no. 225/08/07 Jai Parkash Vs. MCD and Anr. 22/26 xxxxxx Making false averment in the pleading pollutes the stream of justice. It is an attempt at inviting the Court into passing a wrong judgment and that is why it must be treated as an offence. Where a verification is specific and deliberately false, there is nothing in law to prevent a person from being proceeded for contempt. But it must be remembered that the very essence of crimes of this kind is not how such statements may injure this or that party to litigation but how they may deceive and mislead the courts and thus produce mischievous consequences to the administration of justice. A person is under a legal obligation to verify the allegations of fact made in the pleadings and if he verifies falsely, he comes under the clutches of law.
Consequently, there cannot be any doubt that if a statement or averment in a pleading is false, it falls within the definition of offence under Section 191 of the Code. It is not necessary that a person should have appeared in the witness box. The offence stands committed and completed by the filing of such pleading. There is need for the justice system to protect itself from such wrongdoing so that it can do its task of justice dispensation. The rationale will equally apply to a situation where, as here, the complaint will be in respect of subsequent and independent offences, i.e., filing before a court of law, pleadings containing false averments and also filing of documents that were forged as distinct from forgery at home. It will also be contempt of Court."
27. It follows from the above that it is not only within the power of the Court but the solemn duty of the Court to initiate prosecution whenever it finds perjury to have been committed. In the present case, the contradiction between the status report and the property tax assessment form, as well as the plea of the defendant no.2 regarding nature of construction primafacie show that the defendants no.1 and 2 have made false statements before the Suit no. 225/08/07 Jai Parkash Vs. MCD and Anr. 23/26 Court. In this context it would be apt to quote from the case of Vijay Syal & Anr. v. State of Punjab & Ors., (2003) 9 SCC 401 wherein it was noted:
"In order to sustain and maintain sanctity and solemnity of the proceedings in law courts it is necessary that parties should not make false or knowingly, inaccurate statements or misrepresentation and/or should not conceal material facts with a design to gain some advantage or benefit at the hands of the court, when a court is considered as a place where truth and justice are the solemn pursuits. If any party attempts to pollute such a place by adopting recourse to make misrepresentation and is concealing material facts it does so at its risk and cost. Such party must be ready to take consequences that follow on account of its own making. At times lenient or liberal or generous treatment by courts in dealing with such matters are either mistaken or lightly taken instead of learning proper lesson. Hence there is a compelling need to take serious view in such matters to ensure expected purity and grace in the administration of justice".
28. The conduct of the defendants seem to attract offences mentioned in the provisions of Section 195 (1)(b)(i) of Criminal Procedure Code. The procedure for launching prosecution for offences listed in the said provision is provided in Section 340 of the said Code. Section 340 was examined by Hon'ble High Court of Delhi in the Sanjeev Kumar Mittal case (supra). The Hon'ble High Court of Delhi considered the question as to when it is expedient in the interest of justice to hold the enquiry contemplated by the provision. After relying on a number of decisions, it observed thus : "A common thread that can be culled out from these decisions is that perjury, which includes false averments in pleadings, is an evil to eradicate which every effort must be made. The reluctance of the courts to order prosecution encourage parties to make false Suit no. 225/08/07 Jai Parkash Vs. MCD and Anr. 24/26 averments in pleadings before the Court and produce forged documents."
29. The Hon'ble High Court of Delhi further emphasized that "it is the duty of the Court" to hold an enquiry under Section 340 of Code of Criminal Procedure, unless it is inexpedient in the interest of justice. The factors which are relevant for deciding whether, in a particular case, such enquiry is "expedient in the interest of justice" were listed by the Hon'ble High Court of Delhi as under : "The gravity of the offence, the substantiality of the offenders, the calculated manner in which the offence appears to have been committed and pernicious influence such conduct will have in the working of the Courts and the very faith of the common man in Courts and the system of the administration of justice, all have been reckoned in arriving at a conclusion that action under Section 340 is fully justified."
30. It is not necessary for every case where contradictions are found to be referred for enquiry. Hence, it must be assessed as to whether the present case is fit for invoking Section 340 of Code of Criminal Procedure. A finding needs to be recorded whether the statements of the defendants amount to a deliberate and calculated attempt to mislead and to suppress the truth, so as to warrant an enquiry under Section 340 of Code of Criminal Procedure. A preliminary enquiry is therefore required to be conducted, as also approved of in the case of Pritish Vs. State of Maharashtra, (2002) 1 SCC 253. This is all the more imperative since the defendant no.2 has not been granted an opportunity to respond to the imputation of falsehood as the defendant no.2 is not a respondent to the application filed Suit no. 225/08/07 Jai Parkash Vs. MCD and Anr. 25/26 by the plaintiff.
31. Hence, the defendants are directed to explain as to why complaint be not made against them for their prosecution for the aforesaid offences in accordance with the procedure laid down in Section 340 (1) of Code of Criminal Procedure. Affidavits in reply shall be submitted by the respondents to the application under Section 340 read with Section 195 of Code of Criminal Procedure and also by Mr. Kuldeep Singh Saini, Chairman of the defendant no.2. Affidavits in reply shall be submitted within four weeks from today.
32. This shall be without prejudice to the action that may be taken against the defendant no.2 and persons incharge thereof for contempt of Court and breach of undertaking given to the Court on 24.05.2007, as observed above.
Announced in the open Court on 01 August 2013.
st (Ashish Aggarwal) ASCJcumJSCCcumGJ NorthWest District, Rohini Courts, Delhi.
Suit no. 225/08/07 Jai Parkash Vs. MCD and Anr. 26/26