Village Kishangarh Welfare ... vs Union Of India & Others
2009 Latest Caselaw 3200 Del

*                 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.

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.

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

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.

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

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

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.

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

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.

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

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

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

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'