Sh. Mittar Sain Jain & Ors. vs Union Of India & Ors.
2008 Latest Caselaw 1587 Del

*                 IN THE HIGH COURT OF DELHI

+                      WP(C) No.5145/1994

      SH. MITTAR SAIN JAIN & ORS.        ..... Petitioner
           through: Mr. P.Chakarborty, Advocate

                               VERSUS

      UNION OF INDIA & ORS.                    ...... Respondents
                    through:        Mr. Arun Birbal, Adv. for GNCT
                                    Mr. Gaurav Sarin, Adv. for DDA
                                    Mr. O.P.Saxena, Adv. for MCD

                             RESERVED ON:
                               1.9.2008

                       DATE OF DECISION:
%                          9.9.2008

      CORAM:

      Hon'ble Mr.Justice Pradeep Nandrajog
      Hon'ble Mr.Justice Sunil Gaur

1.    Whether reporters of local papers may be allowed
      to see the judgment?

2.    To be referred to the Reporter or not?

3.    Whether judgment should be reported in Digest?

:     PRADEEP NANDRAJOG, J.

1. Petitioners who claimed to be sons of late Sh. Raj

Kishore Jain state that property bearing Municipal Number

3394-95/XI, 3396/XI and 3397-98/XI, Delhi Gate, New Delhi -

110002 are ancestral properties inherited through their

ancestor Bihari Lal. They allege that Bihari Lal who was the

owner of the property, on his death was survived by his sons

Jamna Dass and Chuhamal. They allege that Choti Devi was

the wife of Jamna Dass and Javitri Devi was the wife of

Chuhamal. It is stated that Chuhal Mal and Javitri Devi died

issue-less. Petitioners further allege that Jamna Dass and Choti

Devi were blessed with a son Jagat Kishore who was survived

by his two sons Inder Sen and Prem Sagar and a daughter

Munni Devi. They alleged that the property thereafter

devolved on Raj Kishore, their father and respondents 7 and 8,

Inder Sen and Munni Devi. Notwithstanding inheritance traced

in the aforesaid manner, petitioners state that they are in

actual physical possession of the entire property.

2. Case pleaded is that notwithstanding the properties

aforenoted being acquired under 3 awards, being No.784/1298

dated 9.11.1949, 861/1424 dated 27.2.1950 and 1059/1474

dated 16.2.1953 possession was never taken over. Petitioners

allege that the acquisition was on behalf of the Delhi

Improvement Trust. It is pleaded that the Land Acquisition

Collector never took over possession of the acquired properties

and hence Delhi Improvement Trust did not come into

possession of the same. It is pleaded that with the formation

of the Delhi Development Authority in the year 1957, the Delhi

Improvement Trust ceased to exist, and all properties and

rights and interest of Delhi Improvement Trust vested in the

Delhi Development Authority. Further case pleaded is that a

Slum and J.J.Wing was formed as a part of the Delhi

Development Authority to take charge of the slum areas. The

property in question, situated in the walled city of Delhi is a

slum area. It is pleaded that with the transfer of the Slum and

J.J.Wing of DDA to Municipal Corporation of Delhi, the Municipal

Corporation through the Slum and J.J.Department came into the

picture. It is pleaded that on 30.5.1970 the Slum and J.J.Wing

of the MCD adopted a resolution to the effect that the ADM

(Land Acquisition) may be requested to take over possession of

the properties which were subject matter of the 3 awards

passed on 9.11.1949, 27.2.1950 and 16.2.1953 with further

direction that persons affected by the act of taking over

possession i.e. the occupants should be given alternative

allotments.

3. The petitioners pitched their case on the plea that

having not taken over possession of the properties for years

together, it is too late in the day for the Slum and J.J.Wing to

take over possession of the subject properties. Thus, prayer

made is to declare that the petitioners are lawful owners of the

properties and that the acquisition proceedings have lapsed.

Writ of prohibition is sought for to restrain the respondents

from interfering with the ownership and peaceful possession of

the subject properties in the hands of the petitioners.

4. In the counter affidavit filed by the Slum and J.J.Wing

it is asserted that the properties were acquired under the 3

awards referred to in the petition. It is stated that possession

of the properties was taken over by the Land Acquisition

Collector and placed at the disposal of the Delhi Improvement

Trust. But, in the same breath it is stated in para 19 of the

counter affidavit that the properties are in the unlawful

occupation of the petitioners and that after a survey was made

in which it was reported that the properties have been

rendered unstable and hence dangerous, an attempt was made

to repair the properties when the writ petition came to be filed

by the petitioners.

5. Admitting the resolution passed by the Slum and

J.J.Wing on 30.5.1970, unfortunately, the respondents have

nowhere pleaded as to in what manner the said resolution is

irrelevant for the purposes of deciding the competing claims.

6. We may note that the pleadings in the writ petition

are fairly prolix and at the hearing held on 1.9.2008, with great

difficulty, we were able to cull out the rival versions as afore-

noted.

7. However, from the pleadings of the parties we could

not ascertain as to how were the occupants of the properties,

which were acquired by the 3 awards in question, treated by

the Delhi Improvement Trust and thereafter by DDA and

currently by the Slum and J.J.Wing of the Municipal Corporation

of Delhi. Reason why said fact is relevant is the resolution

dated 30.5.1970 relied upon by the petitioners, relevant part

whereof reads as under:-

"In view of the difficulties enunciated above, the following proposals are put up for consideration and approval.

1. (a) That either the DDA may be requested that the dejure possession of these properties taken by them after getting its, officer delegated the powers of the Spl.land Acquisition Collector and after that the same be passed on to the Municipal Corporation of Delhi.

                                OR

         (b)         The ADM (Land Acquisition), Delhi

Administration may be requested for taking over possession of these properties under Section 16 of the Land Acquisition Act or on behalf of the DDA and pass on the same to MCD from the date of acquisition. This will, however, necessitate the allotment of alternative slum tenements to all these occupants at the time of taking over possession of these properties.

2. That the amount of damages outstanding in the record of the Municipal Corporation of Delhi including that inherited form the DDA may have to be written off.

3. That the maintenance of these properties may be stopped by the Corporation authorities till the position becomes clear.

4. If none of the alternative suggested above

may be practicable then the implementation of the scheme may be transferred back to the DDA.

The case is referred to the adhoc (Slum Clearance & Improvements) Committee for a decision of the above issue.

         ITEM No.27
         Reso.No.28

              Resolved that the second alternative
         suggested     in   the    Commissioners      letter

No.1122/C&C dated 30.5.70 i.e. taking over possession of the properties under Section 16 of the Land Acquisition Act on behalf of the DDA through the ADM (Land Acquisition) Delhi Administration in respect of the properties in the Delhi Ajmeri Gate Scheme be approved.

Resolved further that the occupants of these properties be provided with alternative accommodation as far as possible in the same area or in the vicinity thereof."

8. A bare perusal of the resolution shows that the

occupants of the acquired properties were being treated as

unauthorized occupants and damages were being collected. If

that was so, it would obviously be a case of symbolic

possession being taken over post acquisition of the properties

and treating the occupants as unauthorized occupants,

damages being levied on them. If damages were actually paid,

the occupants cannot claim any right by way of a title in the

acquired properties.

9. Record which was produced at the hearing by the

respondent was bulky. It consisted of 5 thick files. As would

be evidenced by the facts further noted by us hereinafter, it is

regretful to note that officers of the respondent and even their

counsel did not bother to go through the record. It is

unfortunate that no proper assistance was rendered to the

Court and it was left to this Court to browse through the

voluminous record spanning over 60 years to detect the status

of the property in dispute. The voluminous record revealed

some very interesting features which were unfortunately not

brought to the notice of this Court in the pleadings of the

respondents. Had it been so, this Court would have been

excused the botheration of spending hours to peruse the

record of the respondent.

10. The record shows that in the year 1963, first

petitioner filed a suit for injunction before a Sub-Judge, which

was registered as Suit No.181/63. The record pertaining to

that suit is in file No.TG/BP/3396-97/XI/242/69-70-I. It is the

third file maintained by the Corporation. In the plaint, Mitter

Sain Jain pleaded that he and his brothers are in possession of

the properties in question as owners thereof. Challenge was to

a demand raised by the Estate Officer of the respondent

demanding damages for unauthorized use and occupation of

the subject property for the period 30.3.1951 to 31.3.1962

@Rs.3/- per month.

11. Asserting title to the subject properties in the suit, it

was pleaded that the Slum and J.J.Wing of the Corporation

could not demand any damages on said account. Alternatively

it was pleaded that the demand prior to 3 years of filing of the

suit could alone be enforced. For the period prior thereto, it

was pleaded that the demand was barred by limitation.

12. At page No.37 of the said file is a certified copy of

an order dated 3.12.1963 passed by Sh. B.M.Aggarwal, Sub-

Judge, Delhi. The said order shows a consent of Mitter Sain

Jain to the effect that damages for a period of 3 years prior to

filing of the suit shall be paid. The order reads as under:-

"Suit for grant of permanent injunction order. That the value of the suit for court fee and jurisdiction purposes is Rs.130/- and requisite court fee has been paid. Plaint presented on the 25.3.63.

Order

Parties to suit have entered into an agreement. Vide plaintiff counsel dated 5.8.63 which statement was accepted on 23.9.63 by defts. counsel, the suit is stayed sine die. If plaintiff does not pays or deposits arrears of rent for past 3 years prior to date of suit amount by to Rs.1116/- with 5 months, from 23.9.63 which date was agreed to by defts. counsel vide his statements to day the suit shall stand dismiss. In case plaintiff pays a deposit of Rs.1116/- within 5 months from 23.9.63, the Corporation shall not recover or demand any other arrears of rent from plaintiff on basis of notice served and challenged in the suit. Announced in open court."

13. The order is most unhappily worded, in that, it

records that the suit is stayed sine die, but a meaningful

reading of the order shows that the suit was disposed of on a

compromise, requiring Mitter Sain Jain to pay to the

Corporation Rs.1,116/- within 5 months, failing which the suit

would stand dismissed. In case he paid the said amount within

5 months, the Corporation was restrained from recovering any

balance amount.

14. Be that as it may, what is relevant is that Mitter

Sain Jain gave up plea of title to the subject properties and

agreed to pay damages for use and occupation thereof to the

Slum and J.J.Wing of the Municipal Corporation of Delhi.

15. If this be so, petitioners cannot predicate a title to

the subject properties.

16. It was obligatory on the petitioners to have

disclosed to this Court the fact of filing a suit in the year 1963

and the compromise order dated 3.12.1963 passed thereon,

disposing of the suit as compromised. It is settled law that

principle of uberrima fides requires all relevant facts to be

disclosed to a Writ Court and if the Court finds that it is a case

of suppressio veri it would be a good ground to throw out the

writ petition.

17. We do so.

18. The petitioners have not disclosed to this Court the

fact of having given up title to the subject properties when a

suit for injunction was filed by petitioner No.1 in the year 1963

claiming title to the subject properties with alternative plea of

claim for damages raised against them by the Slum and

J.J.Wing of the Municipal Corporation of Delhi being barred by

limitation. By agreeing to pay damages to the Slum and

J.J.Wing of the Corporation and having the suit disposed of,

obtaining a consent from the Slum and J.J.Wing of the MCD

that it would not enforce the demand for damages preceding

the period 3 years prior to the demand, the writ petitioners

accepted title of the Municipal Corporation of Delhi through its

Slum and J.J.Wing to the subject properties.

19. We note that Mitter Sain Jain paid damages to the

Slum and J.J.Wing of the Corporation as per the consent decree

passed in the suit. We further note that the Slum and J.J.Wing

has been charging damages from other people whose

properties were acquired under the awards but continued to

occupy the acquired properties. The position in law therefore

would be that all these occupants admitted and continue to

admit their possession to be unlawful. None of them can claim

a title by adverse possession because each one of them is

paying damages for unlawful occupation of the respective

property in their unlawful possession.

20. We may also note that in the record of the

Corporation there exist a plethora of representations made by

local residents drawing attention of the Commissioner of the

Corporation to the fact that the petitioners are raising gross

unauthorized constructions on the subject properties, needless

to state, the said constructions are alleged to be without

authority of law and yet in spite thereof no action appears to

have been taken to book the unauthorized constructions.

21. The writ petition is dismissed with costs assessed at

Rs.25,000/-.

22. Since the Slum and J.J.Wing of the Corporation did

not render any assistance to the Court when arguments were

advanced, coupled with the fact that even in the counter

affidavit filed by it relevant facts were not pleaded, we direct

that the cost shall not be paid to the respondents but shall be

deposited by the petitioners in the account of the Delhi Legal

Services Authority within a period of 8 weeks from today.

PRADEEP NANDRAJOG, J.

SUNIL GAUR, J.

September 9, 2008 mm