Hari Chand And Ors. vs Govt. Of Nct And Ors.
2006 Latest Caselaw 215 Del

JUDGMENT

Vikramajit Sen, J.

1. The question that has come up for resolution is whether the Government of National Capital Territory of Delhi, Respondent No. 1., is legally competent to build a boundary wall and gate on a property and its abutting land, in which it has spent approximately Rs. 13,00,000/- for repairs and renovations and has a further allocation of approximately Rupees. 3,00,000/-.

2. The land in question is depicted in Annexure-A to the Petition and is reproduced below :-

3. The Chaupal is shown in red colour, whereas open land is shown in green colour. A perusal of the Site Plan discloses that there is no dispute as to the public nature of the Chaupal since it has been termed as Panchayati by the Petitioners themselves. Learned counsel for the Petitioners in these proceedings had, on an earlier occasion, filed a Civil Suit on behalf of Respondents 4-10 claiming that they were the owners of House No. 225 and, therefore, had easementary rights over the open land shown in green in the Site Plan. It is admitted that these Respondents 4-10 are owners not only of House No. 225 but also of House No. 199. It is clear from the Site Plan (Annexure-A) that a jet pump has been installed on public land and as per the Petitioners' own assertion a water supply line has been drawn from this jet pump in front of House No. 225 across public land and under a public street/road in order to reach the supply of water to House No. 199.

4. In the Civil Suit proceedings an interim injunction was declined and the Additional District Judge, inter alia, made the following observations :-

It is a strange case in which the members of the community have succeeded in obtaining sanction from the government to construct a chopal at the cost of government for the benefit of members of the community at large. But plaintiffs who are few in numbers want to create obstruction in the said project. They want to use the open land under the garb of easmentary rights. I do not think that the plaintiffs have got a prima-facie case.

5. This Order was unsuccessfully assailed in an Appeal before this Court; the appeal was dismissed as withdrawn.

6. The same Respondents, that is, Respondents 4-10, had also filed CWP No. 4242/2003, which was dismissed on 6.1.2004 by Orders of my learned Brother, Manmohan Sarin, J., is reproduced below:

Rule.

With the consent of the parties the matter is taken up for hearing and disposal today.

Petitioners are aggrieved by the alleged misuse of the funds sanctioned for repair/renovation, for carrying out reconstruction and building of a boundary wall in the yellow portion, as shown in the site plan, on the periphery of the Chaupal. There are also allegations, in the writ petition of misappropriation of funds by the respondents. However, no particulars have been given. Learned Counsel for the petitioners submits that the attempt is to grab the open portion which would affect the easementry and other rights of the petitioner and others. Learned Counsel for the petitioner submits that the relief sought in this petition is distinct from those sought in S. No. 796/03 though the subject i.e. the property is same. Ld. Sr. Counsel on behalf of the Respondent No. 2 submits that the work is being executed by the Flood Control Division of NCT who have appointed a contractor. The Respondent No. 2 has no hand in the actual execution of the work and the allegations of misappropriation of funds are totally baseless. It is also averred in the counter affidavit that revised estimates have been given by the Govt. enhancing the amount required from Rs. 6.97 lakhs to 15.7 lakhs. Averment to this effect is made in para 10 of the Counter Affidavit at page 67 of the paper book. Accordingly, it is stated that reconstruction is also envisaged as part of the total work as per the revised estimates.

It is not disputed before me that the petitioner has already filed a suit bearing No. 796/03 which is pending before the District Court wherein the petitioner has sought a permanent injunction seeking to restrain the defendants from carrying out construction of the boundary wall and directing them to remove the construction already made by them. The wall refers to the boundary all sought to be constructed to enclose the open land in the periphery of the chaupal. Petitioner claims to be the owner of adjoining plot No. 226. I am of the view that the writ jurisdiction of this court cannot be permitted to be involved to settle private scores especially with regard to enforcement of individual property rights for which in this case, the petitioner had already initiated a suit.

Copy of the Counter affidavit has been handed over by proxy counsel for Respondent No. 2 on perusal of the revised estimate as given at page 64, it is noticed that the dismantling of the old chaupal is itself contemplated in the revised estimated. In this view of the matter, the very basis for assailing the action of the respondents on the ground that reconstruction is being attempted disappears.

Accordingly, the writ petition being devoid of merit is dismissed.

7. Undeterred by these judicial determinations the present Petitioners have filed this Petition arraying the unsuccessful litigants as Respondents 4- 10. These Respondents are presently in Court and despite several questions addressed to them have refused to state how they are aware of these proceedings. The only answer given by them is that their lawyer will appear in the Court and explain it. A photocopy of an Affidavit filed by Hari Chand, Petitioner No. 1, has been filed. This was by way of evidence in the said Civil Suit entitled Raj Kumar v. Gram Panchayat. This Petitioner appeared as PW-3 in those proceedings. The other Petitioners are brothers of Hari Chand. It is, therefore, indubitably clear to me that the present proceedings are collusive.

8. It has been observed by the learned Additional District Judge, specifically taken note of by Manmohan Sarin, J. in CWP No. 4242/2003 that public/government funds have been used for the repair and renovation of the panchayati chaupal. It is, therefore, irrelevant whether the chaupal as well as the contiguous open land is panchayati land or an urbanised village or public land. The villagers in that area had petitioned Respondent No. 1 to carry out renovations to the chaupal. Unless it had the character of a public building, it would not have been open to the State to spend any monies on it from the Public Exchequer. It appears to me to be constitutionally impermissible for the State or any Government to spend public funds at the request of a particular caste; as this is the argument continuously belaboured by Mr. Sinha. He states that the chaupal belongs to the Jatav community. Learned counsel for Respondent No. 1 states that Rs.13,00,000/- have already been spent on the repairs and renovations of the chaupal. The remainder of approximately Rs.3,00,000/- from the allocated funds is envisaged for building a boundary wall, including gate.

9. These proceedings are not only collusive between the Petitioners and Respondents No. 4-10 but are also mala fide, and seek to further their personal interests. As has already been noticed the claim of Respondents 4-10 had been turned down by the Civil Court and the Appeal thereafter was filed and withdrawn. Mr. Sinha states that the Suit is still pending; this is obvious since the present Petitioner has appeared as PW-3 in the pending Suit.

10. The request of carrying out repairs as well as making a boundary wall - 'Chardiwari' has been made by these Petitioners claiming that the land in question belongs to Scheduled Caste. Mr. Sinha states that the word 'Chardiwari' has been interpolated. This, however, is his own document and its authenticity cannot be disputed in writ proceedings.

11. The following directions are passed in this Writ Petition:

(1) The jet pump as well as water supply line shall be removed by Respondent No. 1 within forty-eight hours. Since it will result in digging-up of a pucca/metal road, the costs thereof shall be recovered from the Petitioners as land revenue; (2) the open lands shown in green which are contiguous to the panchayati chaupal and which are essential for the enjoyment and use of the panchayati chaupal, and over which no individual has claimed private rights is declared as public land and, shall be enclosed by Respondent No. 1 by means of a boundary wall. A gate shall be erected thereon so as to regulate entry and exit to the open lands as well as to the chaupal. There have been allegations against Respondents No. 2 and 3 in these proceedings as well as a local M.L.A.. Learned counsel, on their behalf, states that they have no claim to this land; that it is public or community property and may be used as such; and that Respondent No. 1 shall appoint a Chowkidar so that no person in the village appropriates the chaupal together with the open land shown in Green for his personal use. Respondents No. 2 and 3 as well as the Petitioners and other persons in the village will have the right to the use of the chaupal and land. Mr. Ratan Lal states that Respondent No. 1 shall appoint a chowkidar for the purpose; and that no charges shall be taken from any person in the village for the use of the chaupal and the land. Since I am left with no doubt that these proceedings are collusive and ought not to have been initiated in view of the judicial determination that had been handed down on two previous occasions, the Writ Petition is dismissed with costs of Rs.20,000/- payable by the Petitioners to Respondent No. 1.

12. The Petition has been taken up again after the Lunch Break at the request of learned counsel for the Petitioner and in the presence of the Respondents. At this stage Mr. Sinha states that the Petitioners will themselves abide by the Orders of this Court passed in these proceedings. They shall themselves dismantle the water supply from the pump to House Nos.199 and 225 in its entirety. Respondents 4-10, who are present in Court, state that they shall withdraw Civil Suit No. 278/2003 pending in the Court of Shri D.C. Anand, Additional District Judge. Since that Suit concerns the claim of easementary rights, so far as House No. 225 is concerned the Petitioner as well as Respondents 4-10 shall be fully satisfied if a pathway measuring 6 feet in width is carved out from the public land shown in green in Annexure-A. The four feet portion leading to ingress and egress to House No. 226 shall stand increased by two feet. In other words, the pathway leading to House No. 226 shall be six feet in width along the northern side of House No. 225. In these circumstances since the entire litigation has been brought to an end and the parties have submitted to these Orders, and since the Respondents 4-10 as well as the Petitioners, who are related to each other and who have a common cause have undertaken to remove all jet pumps and water supply and the digging of the metal/pucca road is no longer necessary, the imposition of costs is recalled.