Devender Singh vs Delhi Development Authority & ...
2009 Latest Caselaw 3888 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             W.P.(C.) No.11569/2009

%                          Date of Decision: 22.09.2009

Devender Singh                                              .... Petitioner
                           Through Mr. N. Prabhakar, Advocate.

                                    Versus

Delhi Development Authority & Anr.                .... Respondents
                    Through Mr. Ajay Verma, Advocate.
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.

*

The petitioner seeks a direction to the respondent No.1 not to

dispossess or demolish the residential property of the petitioner built on

a plot No.659 forming part of the registered Resident Welfare

Association, Block K-II, Mahipalpur Extn., Part II.

The plea of the petitioner is that the respondent No.1 in

contravention of Section 3 of the National Capital Territory of Delhi

Laws (Special Provisions) Act, 2009 cannot demolish the residential

premises of the petitioner situated in a colony which has already been

issued a provisional certificate of regularization in terms of Clause 4 of

the notification dated 24th March, 2008.

The petitioner has also contended that the mother of the

petitioner, Smt.Barfo Devi was granted leasehold rights with respect of

two bighas of land in Khasra No.843/05 in revenue estate of Village

Mahipalpur by the Goan Sabha and a residential property measuring

500 sq.yards (B-34A) called Swaroop Singh Bhawan and now forming

part of the resident welfare association Block K-II, Mahipalpur Extn was

built.

According to the petitioner an ejectment order against the

petitioner's mother in terms of Section 86 of Delhi Land Reforms Act

was passed on 6th October, 1997. In the said proceedings after remand

another ejectment order dated 11th April, 2007 was again passed and

the respondent No.1, according to the petitioner, was not a party to said

proceedings.

The petitioner also disclosed that the mother of the petitioner had

filed a suit for injunction being CS(OS) No.1589/2007 on the ground

that the mother of the petitioner had been in continuous possession for

30 years. The said suit was dismissed by a single Judge and an appeal

filed against the said judgment and decree dated 8th May, 2008 was also

dismissed in RFA(OS) No.72/2008 by order dated 31st July, 2009.

This cannot be disputed by the petitioner that her mother was

held not in possession of the land in view of the order passed by the

Revenue Assistant dated 11th April, 2007. The said order was not

challenged by the mother of the petitioner. The learned Single Judge in

suit No.1589/2007 filed by the mother of the petitioner had held that

the suit for injunction was a proxy litigation filed by the mother of the

petitioner, as others who were allegedly in occupation had failed to

establish their rights before the Court of competent jurisdiction. The

suit for injunction was held to be frivolous and was dismissed with a

cost of Rs.40,000/- payable to the defendant.

Against the judgment and decree dated 8th May, 2008 in CS(OS)

No.1589/2007 dismissing the suit of the mother of the plaintiff with a

cost of Rs.40,000/- and holding that the she was not in possession of

the property, a regular first appeal being RFA (OS) No.72/2008 was

filed. During the pendency of the appeal the mother of the petitioner

had died and her legal representatives including the petitioner were

substituted.

The first appeal filed against the judgment holding that the suit

filed by the mother of the petitioner was vexatious and on account of

proxy litigation as she was not in possession, was also dismissed

holding that the mother of the petitioner had also concealed the

material facts and she had not disclosed the order passed by the

Financial Commissioner on 24th August, 2007. It was held that the

petitioner's mother had concealed the fact regarding adjudication of her

revision petition by order dated 24th August, 2007 and, therefore, it was

held that the mother of the petitioner had not come to the Court with

clean hands. While dismissing the appeal, the finding given by the

learned Single Judge that the mother of the petitioner was not in

possession of the property and it was a proxy litigation on behalf of

those who had failed to establish their right, was not set aside. The

order dismissing the appeal of the petitioner has not been challenged by

the petitioner.

The learned counsel for the petitioner after considerable

argument has contended that the mother of the petitioner was in

possession of the property on the basis of the alleged bills of Delhi

Vidyut Board and the notice issued by Municipal Corporation of Delhi

and an inspection report dated 30th March, 2001.

In a writ petition the petitioner cannot challenge the judgment

and decree dated 8th May, 2008 in suit No.1589/2007 and judgment

and decree dated 31st July, 2009 passed in RFA(OS) No.72/2008 on the

ground that the documents now sought to be produced were not

produced before the single judge and in appeal. Since the finding that

the mother of the petitioner was not in possession and she had initiated

proxy litigation on behalf of others who had failed to establish their

right has become final, the petitioner cannot contend in the present writ

petition that her mother was in possession and after her demise he has

come in possession and he is not liable to be dispossessed and

dislocated on account of the provisions of National Capital Territory of

Delhi Laws (Special Provisions) Act, 2009.

After protracted argument learned counsel for the petitioner

sought to withdraw the writ petition which has been declined by this

Court in the facts and circumstances.

In the facts and circumstances, the petitioner cannot contend

that he is in possession of the property and his property cannot be

demolished and that he cannot be dispossessed. The mother of the

petitioner was held not to be in possession of the property and litigation

initiated by her was held to be proxy litigation and was dismissed with

costs. If the mother of the petitioner was not in possession, then the

petitioner cannot claim that he is in possession of the property. This is

not the case of the petitioner that he has come in possession of the

property independently. The petitioner has rather disclosed about the

litigation initiated by his mother. In the circumstances, the petitioner

has no right to get his possession protected as he is not in possession of

the said property. The writ petition in the facts and circumstances is an

abuse of process of law and is liable to be dismissed.. The petitioner is

not entitled for any relief. The writ petition is, therefore, dismissed with

a cost of Rs.10,000/-.

September 22nd, 2009                               ANIL KUMAR, J.
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