Surya Prakash Tyagi vs Lt.Governor Of Delhi & Ors
2009 Latest Caselaw 1890 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI


+               W.P.(C) 7501/2007 & CM Nos. 750/2007, 5260 & 5341 of 2009


        SURYA PRAKASH TYAGI                                    ..... Petitioner
                       Through:          Mr. Sudhir Kumar Sharma, Advocate.
                                         Mr. Sanjeev Ralli, Advocate for Amicus
                                         Curiae.
                      versus

        LT.GOVERNOR OF DELHI & ORS                      ..... Respondents
                       Through:   Mr. Rajeev Sharma, Advocate for
                                  Respondent Nos. 3 to 8.
                                  Mr. Madan Gera, Advocate for
                                  respondent No. 10.
                                  Mr. Umesh Sharma, Advocate for
                                  applicants in CM No. 5341/2009.

CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE NEERAJ KISHAN KAUL
                   ORDER

% 06.05.2009

1. The case of the petitioner in the present writ petition was that

the lands in question were agricultural lands and vested in "Gram

Sabha". He stated that the lands were wrongly recorded in the name

of respondent No. 9 who had further transferred the lands to various

persons. The petitioner has alleged that respondent authorities are

permitting the illegal occupation and unauthorized construction on

"Gaon Sabha" land in village Jharoda Majra Burari, Delhi.

2. When the matter came up before this Court on 6th August,

2008, the following order was passed:-

"1. The case of the petitioner is that the lands in question are agricultural lands and they are vested in Gram Sabha. He further states that the lands are wrongly recorded in the name of

Respondent No.9 who has further transferred the lands to various persons.

2. In the first instance that notice was issued only to Respondent No.9. It is necessary to issue notice to other Respondents to ascertain whether the lands have really vested in the Gram Sabha and whether they have been encroached upon.

3. Notice.

4. Mr. Rajeev Sharma, learned counsel for Respondent No.1 and Respondents 3 to 8 accepts notice.

5. Respondent No.3 i.e. the Deputy Commissioner (North) is directed to depute a senior officer to carry out the inspection of the lands in question and to file a status report to this Court about the status of the lands and also whether the lands are Gram Sabha lands. Status report be filed within four weeks from today.

6. List on 10th September 2008.

7. A copy of this order be given dasti to learned counsel for the parties."

3. Thereafter when the matter was listed before the Court on 28th

January, 2009, this Court passed the following order:-

" Petitioner has alleged that the respondents-authorities are permitting illegal occupation and unauthorized construction on Gaon Sabha land in Vill. Jharoda Majra Burari, Delhi. Learned counsel for the petitioner has drawn our attention to the khatauni for the year 1995-96 vesting the land in Khasra nos. 22/16/2, 22/17, 22/18, 22/19/1, 22/22/1, 22/23 and 22/24, measuring 13 bighas 19 biswas, in the Gaon Sabha after recording the name of the earlier owner as M/s. Supreme Commercial Enterprises Ltd. He has also drawn our attention to the photographs at pages 68-69 of the paper book which show that fresh construction is being undertaken on vacant land but several portions of the said land are still vacant.

2. On 6th August, 2008, learned counsel for M/s. Supreme Commercial Enterprises Ltd had stated that the lands were wrongly recorded in the name of the said company and the said land had been transferred to various persons.

3. Learned counsel for GNCT of Delhi has filed status report stating, inter alia, that pursuant to proceedings under the Delhi Land Reforms Act, 1954order of permanent injunction was passed directing M/s. Supreme Commercial Enterprises Ltd not to raise any further construction and the S.H.O., Timarpur was directed to ensure that no further construction was carried out. It is further stated that there was violation of Section 81 of the Delhi Land Reforms Act, 1954 and the land now vests with the Gaon Sabha. Steps have been also taken to ensure that no unauthorized construction or encroachment takes place. As per the status report, there are about 37 inhabited houses in the said khasra and fresh construction was going on in about 5-6 houses.

4. Learned counsel for the other private respondents submitted that the land in question forms part of a provisionally recognized colony, namely, Hardev Nagar and the said houses were constructed prior to 2001. Learned counsel for the petitioner has disputed the said submission and submitted that the khasra numbers mentioned above are not part of Hardev Nagar Colony and the respondents are trying to take advantage and benefit of the Notification by claiming that this area is part of Hardev Nagar Colony, though in fact it is outside the said Colony.

5. The sale deeds executed in 2005 relied upon by the private respondent only refer to sale of vacant land and not any construction thereon. As already stated above, the photographs filed on record as well as status report filed by GNCT of Delhi does not support the case and contentions raised by the private respondents.

6. In these circumstances, we appoint Mr. Sanjeev Ralli, advocate as a Local Commissioner to visit the khasras and with the help of the revenue authorities demarcate the entire area. Local Commissioner will take photographs and

note full details of the existing construction and vacant unconstructed land. The Revenue authorities will provide assistance to the Local Commissioner. GNCT of Delhi will also take steps to take satellite images/photographs of the area in question and ensure that no further construction or encroachments are made. In case unauthorized construction or encroachment is made, the revenue authorities will take steps in accordance with law and if required will take help of the local police.

List the matter on 4th March, 2009.

Copy of the Order will be given DASTI to Standing counsel for GNCT of Delhi and the Local Commissioner who will file their report within five weeks."

4. The matter was then listed on 4th March, 2009 when the

following order was passed by this Court:-

" Mr. Sanjeev Ralli, advocate who is appointed as Amicus Curiae is present in Court and seeks one week‟s time to file status report. He, however, has filed photographs. He states that unauthorized construction is going on and in case immediate steps are not taken, an unauthorized colony is likely to come up.

2. We have seen the photographs. It is apparent that inspite of our Order dated 28th January, 2009 directing that no unauthorized construction and encroachment should take place, unauthorized construction continues unabated. In our last Order, we have also recorded that the land in question already vests with the Gaon Sabha and directions have been issued to the Revenue Authorities to take steps to prevent encroachments and unauthorized constructions. The Revenue Authorities were also permitted to take police help.

3. In view of the above situation, we direct the Revenue Authorities to seal all properties where unauthorized construction is going on or has been in progress in respect of land measuring 13 bighas 19 biswas in Khasra nos. 22/16/2, 22/17, 22/18, 22/19/1, 22/22/1, 22/23 and 22/24 situated in Vill. Jharoda Majra

Burari, Delhi which was earlier recorded in the name of M/s.Supreme Commercial Enterprises Ltd and now vests with Gaon Sabha.

4. D.C.P., Civil Lines will ensure compliance of this Order and Order dated 28th January, 2009 directing that no further construction or encroachments in the said land will be made. The police authorities will provide full assistance to the Revenue Authorities to comply with the Orders and prevent encroachments or unauthorized construction.

List on 12th March, 2009.

DASTI under the signature of the Court Master."

5. Applications for impleadment being CM No. 5260/2009 and for

directions being CM No. 5341/2009 were filed by the applicants who

are residents of Colony Hardev Nagar, Jharoda Majra Burari, Delhi-

110084. It was stated in the said applications that though the reliefs

prayed for in the writ petition were directly against the applicants,

however, the petitioner had intentionally not impleaded them as

respondents in the writ petition. It was also stated that the petitioner

is a chronic litigant and has been threatening and blackmailing the

applicants for a long time. It was further inter alia stated in the

application CM No. 5260/2009 as under:-

"3) That the Applicants has now come to know about the filing of the present Writ Petition when the Revenue Authorities along with Court Commissioner appointed by this Hon‟ble Court has visited the colony of the Association and has carried out substantive survey and sealing of several houses of the colony thereby leaving the residents of the said houses without any shelter. It is important to submit that the Petitioner Mr. Suraj Prakash Tyagi has been threatening the members of the Association from time to time and has been extorting money from the residents by coercing them that he will get their

houses demolished. The applicant is providing a detailed description giving the conduct of the aforesaid Petitioner with regard to the land on which the present colony is situated. The following paras disclose the conduct of the Petitioner who has approached this Hon‟ble Court under the garb of filing a public interest litigation. However, his objectives are selfish and to settle the scores with regard to the present land. The details are given hereunder:

i) That the land on which the present colony is situated is a part of the estate of one Sh. Ganga Sahai which comprised 60 bighas of agricultural land in Khasra Nos.8/16/1(2-2), 8/25(4-6), 9/20/2(1-0), 9/21(5-10), 10/1(4-17), 10/10(3-19), 10/11(3-10), 10/20(3-7), 11/5(4-

16), 11/6(4-16), 11/10(4-16), 11/16(4-16), 17/24(4-16), 17/25(4-16), 22/4(4-16), 22/5(4-

11), 22/6(4-16), 22/7(4-16), 22/14(4-16), 22/15(4-11), 22/16/2(1-9), 22/19/1(2-7), 22/22/1(3-0), 22/23(6-0), 22/24(3-11), 22/27(0-5), 23/1(4-16), 23/10(4-16), 23/11(3-

0), 47/4(3-12), 58(0-9), 62(2-14), village Jharoda Majra Burari, Delhi, as per the revenue records. Sh. Ganga Sahai died in 1942 leaving his four sons, namely, Laxmi Narain, Ram Narain, Bhoodev, Nar Dev. Sh. Laxmi Narain was not having son and was having daughters only. The present petitioner is the grandson of Sh. Ram Narain. After the death of Mr. Laxmi Narain, the grandfather of the present petitioner and some other co-sharers of the land wanted to grab the share of the deceased Sh. Laxmi Narain. There was several rounds of litigation between Sh. Ram Narain and Smt. Hardei W/o Sh. Laxmi Narain. Smt. Hardei had no male child, hence the grandfather, father of the present Petitioner and all other brothers had an intention of garbing her share of land against which Smt. Hardei filed a partition shit before the Revenue Authorities, which was decreed in her favour, wherein she was recorded as the Bhoomidar of the aforesaid Khasra Numbers. The father and grandfather of the present Petitioner filed several cases against the aforesaid partition suit and are still filing several cases under one garb or the other. A brief of such cases is given hereunder:-

(a) Appeal bearing RCA No. 32/1999 before the Additional District Judge, Delhi which was dismissed vide orders dated 27.4.1992.

(b) RSA No. 52/1992 before the Hon‟ble High Court of Delhi, which was dismissed vide orders dated 19.5.1992.

(c ) SLP (Civil) No. 9239/1992 before the Hon‟ble Supreme Court of India, which was dismissed vide orders dated 17.8.1992.

(d) Objections u/s, 47 r/w Sec. 151 C.P.C. before SDM(KWC)/RA in Suit No. 115-RA of 1983, which was dismissed by the SDM.

(e) Revision u/s. 187 of the Delhi Reforms Act, 1954 before the Financial Commissioner, Delhi, which was dismissed vide orders dated 11.8.1992.

(f) W.P.(C) No. 714/1995 before the Hon‟ble High Court of Delhi challenging the orders of the Financial Commissioner dated 15.12.1994, which was dismissed by the Hon‟ble Court vide Orders dated 27.9.1996.

(g) Civil Suit No. 899/90 titled „Master Himadri Shekhar Tyagi and Ors. Vs. Smt. Hardei & Ors. before the Court of Sh. T.R. Naval, Sub- Judge, Delhi which was dismissed vide orders dated 5.8.1992.

(h) RCA No. 58/1992 before the Senior Civil Judge, Delhi, which was dismissed vide judgment dated 18.9.1993 passed by Sh. J.K. Pali, then Senior Civil Judge, Delhi.

(i) RA No. 6/1994 before the Hon‟ble High Court of Delhi, which was dismissed vide orders dated 7.4.1999, imposing a cost of Rs.25,000/- on the Petitioner. The relevant para of the aforesaid judgment is reproduced hereunder for the sake of ready reference:

" What is shocking is that appellants have nowhere mentioned in this second appeal that they have filed Writ Petitions against the judgment and Decree dated 10.3.1989 and still obtained an ex-parte intrim orders against the Respondents. As a matter of fact, the Court was misled in granting the said order on 24.3.1994.

The conduct of the appellants cannot

inspire any confidence. They have abused the process of the Court.

Appeal is dismissed with exemplary cost of Rs. 25,000/0."

(j) C.W.P. No. 959/1993 titled „Himadri Shekhar Tyagi Vs. Smt. Hardei‟, which was withdrawn on 17.2.1993.

(k) Civil Writ Petition No. 4451/1993 by Himadri Shekhar Tyagi, which was dismissed by Division Bench of this Hon‟ble Court vide orders dated 27.9.1993.

(l) Suit for injunction titled „Himadri Shekhar Tyagi Vs. Supreme Commercial Enterprises Ltd.‟ bearing No. 442/1995, which was withdrawn on 22.1.1999.

(m) Petition u/s. 85 of the Delhi Land Reforms Act, by Sh. Himadri Shekhar Tyagi against M/s. Supreme Commercial Enterprises Ltd., who was the successor in the interest of Smt. Hardei, the aforesaid petition was dismissed vide orders dated 23.10.2000 by SDM/RA, Delhi.

(n) 13 Civil Suits by the present Petition and his brothers, cousins, etc., against Smt. Hardei, which were finally dismissed by the Court of Sh. Sanjay Sharma, Civil Judge, Delhi, vide orders dated 17.1.2000.

(o) Petition u/s. 85 of the Delhi Land Reforms Act, 1954 against M/s. Supreme Commercial Enterprises Ltd. (Successor in the interest of Smt. Hardei), bearing No.297/RA/1995, which was dismissed vide orders dated 30.8.2000.

(p) Petition u/s. 85 of the Delhi Land Reforms Act, bearing No.95/RA/2000, titled „Keshav Dutt Vs. M/s. Supreme Commercial Enterprises Ltd.‟, which was dismissed vide orders dated 23.10.2000.

(q) Appeal under the Delhi Land Reforms Act before the Deputy Commissioner (North), against the orders dated 23.10.2000 passed by the SDM against the present petitioners.

(r) Civil Suit in the year 2001 before the Court of Civil Judge, Delhi, then presided over

by Sh. Harish Dudani, Civil Judge."

6. It was submitted by the applicants that the petitioner, his

brothers and family members who had been attempting to grab the

present piece of land had remained unsuccessful in all the above said

petitions and the share of land remained in the name of Smt. Hardei,

who ultimately sold the said land to M/s Supreme Commercial

Enterprises, who have further sold the said land to various other

parties, wherein several small plots were sold to various people

including the applicants who have constructed their houses on the

aforesaid piece of land and were residing there for the last several

years. It was also stated in the said applications that the petitioner

was fully aware about the aforesaid facts and had in fact been

threatening the residents of the colony in various ways and means

and has also been extorting money from them from time to time. It

was further stated that the residents of the applicants‟ colony are

very poor people who have spent their hard earned money to

construct a shelter in Delhi for their survival. It was also the case of

the applicants that the petitioner had concealed vital information and

facts from the knowledge of the Court with an intention to mislead

the Court and fulfill his sinister objective of blackmailing the

residents of the colony.

7. The petitioner in reply to the application of the impleaded

respondents could give no plausible or justifiable explanation as to

why this important and vital information regarding inter se disputes

between the members of the petitioner‟s family pertaining to the land

in question had not been disclosed in the writ petition. All that the

petitioner has stated in his reply is that the litigations as mentioned

by the impleaded respondents in their application are a matter of

record and that the petitioner was not a party in any of the litigation.

The petitioner has also stated that these litigations were fought

between the ancestors of the petitioner. This explanation cannot be

accepted. Further, the counsel for the impleaded respondents placed

before us, during the hearing today, a copy of the proceedings

between Kesho Dutt S/o Late Sh. Ram Narain and M/s Supreme

Commercial Enterprises Ltd., in the court of Revenue

Assistant/S.D.M. (Civil Lines), Tis Hazari Courts, Delhi, with regard

to the land in question, wherein an application for compromise under

Order XXIII Rules 1 and 2 of the Code of Civil Procedure, 1908 had

been filed along with a Compromise Deed and the petitioner was a

signatory to the said Compromise Deed as a witness. It is also

pertinent to mention here that the present petitioner is the grandson

of Late Sh. Ram Narain, as stated by the impleaded respondents in

their application and not denied by the petitioner. Further the

counsel for the impleaded respondents has brought to our notice a

copy of "Nishan Dahi" of village Burari, where the presence of the

petitioner was also recorded. On being confronted with these

documents, the petitioner had no explanation to offer.

8. In view of what has been stated hereinabove, we are of the view

that the present petition is not a genuine public interest litigation but

is a mala fide petition. Further the petitioner has not disclosed full

and complete facts to the Court and has withheld and suppressed

material facts from this Court.

9. In Neetu v. State of Punjab (2007) 1 SCC 614 it was held by

the Supreme Court that when a particular person is the object and

target of a petition styled as PIL, the Court has to be careful to see

whether the attack in the guise of public interest is really intended to

unleash a private vendetta, personal grouse or some other mala fide

object. In Ashok Kumar Pandey v. State of West Bengal (2004) 3

SCC 349 the Supreme Court held that public interest litigation is a

weapon which has to be used with great care and circumspection and

the judiciary has to be extremely careful to see that behind the

beautiful veil of public interest an ugly private malice, vested interest

and/or publicity-seeking is not lurking. Courts must be careful to

see that a body of persons or member of public, who approaches the

Court is acting bona fide and not for personal gain or private motive

or political motivation or other oblique consideration. The court must

not allow its process to be abused for oblique considerations by

masked phantoms who monitor at times from behind. Petitions of

such persons deserves to be thrown out by rejection at the threshold,

and in appropriate cases with exemplary costs. Further, in

T.N.Godavarman Thirumulpad v. Union of india (2006) 5 SCC 28

Supreme Court quoted from its earlier judgment in Dattaraj Nathuji

Thaware v. State of Maharashtra (2005) 1 SCC 590 wherein the

Court held that the attractive brand name of public interest litigation

should not be used for suspicious products of mischief. It should be

aimed at redressal of genuine public wrong or public injury and not

be publicity oriented or founded on personal vendetta.

10. The present petition styled as a "Public Interest Petition" is

clearly an abuse of process of the court for the reasons stated herein

above. The petitioner is also guilty of making false averments and

allegations in the writ petition. The petitioner has clearly not

approached this Court with clean hands and has not stated the

correct facts. The petitioner is clearly guilty of deliberately making

false and wrong averments in the writ petition and is not entitled to

any relief from this Court. The conduct of the petitioner in resorting

to the aforesaid mis-statements, false averments and suppression of

material facts is a gross abuse of the process of court. A person who

makes false averment and does not come to the court with clean

hands is liable to be thrown out at the threshold and appropriate

action initiated against him in accordance with law. The present

petition is clearly motivated by private malice and vested interest.

The writ petition is liable to be rejected at the threshold with

exemplary costs.

11. The petitioner has withheld material facts with regard to the

inter se litigation between his family pertaining to the land in

question in the writ petition. The petitioner clearly had an ulterior

motive behind filing the present writ petition as explained by the

impleaded respondents in their applications. It has been stated by

the impleaded respondents that they are residents of Colony Hardev

Nagar, Jharoda Majra Burari, Delhi- 110084 which is not

provisionally granted a regularization certificate by the Government

of Delhi as the process of regularization of the unauthorized colonies

in Delhi is under way. Needless to say, that the outcome of any

proceedings for regularization would be decided by the concerned

authorities in accordance with law. It would be open to the

impleaded respondents to file undertakings before the concerned

authorities stating therein that no further construction, contrary to

law, would be carried out and on their doing so, it would be open to

the authorities to consider and decide in accordance with law

whether the properties can be de-sealed in view of the said

undertakings.

12. During the pendency of this writ petition, several orders had

been passed by us directing that no unauthorized construction and

encroachments should take place. We had also recorded that the

land in question also vests with the "Gaon Sabha" and directions had

been issued to the revenue authorities to take steps to prevent

encroachments and unauthorized construction. The revenue

authorities were directed to seal all properties where unauthorized

construction was going on and or had been in progress, in respect of

land measuring 13 Bighas 19 Biswas in Khasra Nos. 22/16/2 and

22/17, 22/18, 22/19/1, 22/22/1, 22/23 and 22/24 in village

Jharoda Majra Burari, Delhi- 110084, which were also recorded in

the name of M/s Supreme Commercial Enterprises Ltd. and now

vests with the "Gaon Sabha". Any application for de-sealing of the

premises would be considered and decided by the concerned

authorities in accordance with law. Needless to say, that the

concerned authorities shall ensure that no unauthorized

construction or encroachment on the land in question takes place.

13. The writ petition is accordingly disposed of in the above stated

terms. However, this is a case where the writ petition was filed for

oblique consideration and the petitioner had not approached the

Court with clean hands and had withheld material facts from the

Court. The petitioner is clearly guilty of suppression of material facts

and making false averments. In view of the same, we deem it fit and

proper to impose costs of Rs. 50,000/- on the petitioner to be paid

within a period of two weeks from today. All the pending applications

stand disposed of as well.

CHIEF JUSTICE

NEERAJ KISHAN KAUL, J May 06, 2009 sb