Ashok Kumar Mittal & Ors. vs Union Of India & Ors.
2010 Latest Caselaw 3603 Del

50
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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      LPA 506/2010 & CM 13135/2010

ASHOK KUMAR MITTAL & ORS.              ..... Appellants
                Through: Mr. Anil K. Aggarwal, Advocate.

                       versus

UNION OF INDIA & ORS.                    ..... Respondents
                   Through: Mr. Ajay Verma, Advocate for
                            DDA.




%                                     Reserved on 27th July, 2010
                                      Date of Decision: 5th August, 2010

CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE MANMOHAN

1. Whether the Reporters of local papers may be allowed to see the judgment? Yes.
2. To be referred to the Reporter or not?                                   Yes.
3. Whether the judgment should be reported in the Digest?                   Yes.


                                JUDGMENT

MANMOHAN, J

1. Present Letters Patent appeal has been filed challenging the

judgment and order dated 23rd April, 2010 whereby a learned Single

Judge of this Court has dismissed the appellants' writ petition being

W.P.(C) 1216/2010 with costs of Rs.50,000/- to be paid by each of the

appellants to Delhi Development Authority within ten weeks.

2. Mr. Anil K. Aggarwal, learned counsel for appellants contended

that around 1971-1972, the appellants had purchased properties from

various Bhoomidars by way of registered sale deeds. He further stated

that appellants as well as other owners of the land in dispute had

through their association, Ashok Nagar Welfare Association, applied

for mutation of the said land in revenue record, but the same was not

carried out. Mr. Aggarwal stated that around 1984, the appellants came

to know that their lands had been acquired by respondent in the year

1982.

3. Mr. Anil Aggarwal, learned counsel for appellants submitted that

the acquisition was illegal as the land had been acquired without giving

any prior notice to the appellants. He further stated that the

Government authorities had wrongly relied upon the mutation entries in

the revenue record to ascertain the owner of the land and consequently,

no compensation had been paid to the appellants. Mr. Aggarwal further

contended that as no actual physical possession of the appellants' land

had ever been taken by the Revenue, the acquisition proceedings were

vitiated. He also submitted that the acquisition notifications were ultra

vires the Delhi Development Authority Act, 1957 and Part IX-A of

Municipalities as well as Article 239AA of the Constitution besides

being unfair, discriminatory and irrational. Mr. Aggarwal lastly

submitted that the Government had decided to regularize unauthorized

colonies on the acquired land which amounted to abandonment of the

purpose for which the land had been acquired. In this connection

learned counsel for appellants relied upon a large number of judgments

of the Apex Court as well as this Court.

4. On the other hand, Mr. Ajay Verma, learned counsel for

respondent-DDA submitted that the present appeal was a gross abuse of

process of Court, as all the arguments raised by Mr. Anil Aggarwal,

learned counsel for appellants had been rejected by a reasoned

judgment and order in the case of East End Apartments Cooperative

Group Housing SocietyVs. D.D.A., 157 (2009) DLT 272 (DB).

5. Mr. Ajay Verma pointed out that Ashok Nagar Welfare

Association as well as the alleged individual land owners had instituted

as many as eighty five (85) proceedings in various Courts including

Writ petitions/ Appeals/Special Leave Petitions/Civil Suits--all of

which had been dismissed. He further stated that in a Special Leave

petition filed against the aforesaid judgment of the Division Bench, the

Supreme Court had issued notice confined to the issue of costs of Rs.10

lacs. The notice was subject to the condition that Mr. Mohan Singh

would file an undertaking on behalf of himself and on behalf of Ashok

Nagar Welfare Association that no litigation would be filed before any

Court in respect of Khasra No. 391/263. The Supreme Court's order

dated 23rd March, 2009 is reproduced hereinbelow :-

ORDER SLP (C) No. 5911/2009 Issue notice confining to the cost of rupees ten lakhs directed to be paid by Mohan Singh, who was prosecuting on behalf of Ashok Nagar Welfare Association.

Interim stay of the direction to pay rupees ten lakhs. SLP(C) No. CC 3468/2009 Permission to file special leave petitions is dismissed.

SLP(C) No. 6585 of 2009 Issue notice to the payment of cost by Mohan Singh only subject to filing of an undertaking on behalf of himself

and on behalf of Ashok Nagar Welfare Association that no litigation will be filed before any court in respect of Khasra no. 391/263.

6. In rejoinder, Mr. Anil K. Aggarwal, learned counsel for appellant

submitted that appellants were not bound by the undertaking given by

Mr. Mohan Singh and in any event all the submissions advanced by

him had not been considered in the previous eighty five proceedings, in

particular in the Division Bench judgment in East End Apartments

Cooperative Group Housing Society (supra). He also submitted that

cause of action for filing the present writ petition was entirely different

from that of the earlier proceedings

7. Having heard the parties and having perused the appeal papers,

we are of the view that learned Single Judge was right in concluding

that the present appeal is an abuse of process of Court as it amounts to

re-litigation. The prayer clause in W.P.(C) 1216/2010 against which the

present LPA has been filed, is reproduced hereinbelow:-

"a) to issue a writ of or in the nature of mandamus and/or any other appropriate writ/s, order/s or direction/s quashing Regulation/s dated 24.3.2008, 16.6.2008 of the respondent nos.1/2 and also to quash the „Provisional‟ Certificate of Regularisation‟ dated 17.9.2008 of the respondent no.3.

b) to issue a writ of or in the nature of mandamus and/or any other appropriate writ/s order/s or direction/s directing the respondents 1 and 2 to formally de-notify acquisition of the petitioners‟ land and to restore it back to the petitioners immediately, in a time bound manner, after due verification of their claim/s and on repayment of compensation, without interest, if any, previously paid to them by the respondents.

c) to issue a writ of or in the nature of mandamus

and/or any other appropriate writ/s, order/s or direction/s directing the respondents 1 and 2 to forthwith get the petitioners land vacated and to remove all encroachment thereupon and to hand over vacant and actual physical possession thereof to the petitioners and to their satisfaction.

d) to issue a writ of or in the nature of mandamus and/or any other appropriate writ/s, order/s or direction/s restraining and prohibiting the respondents from disturbing and interfering with the peaceful enjoyment and possession of their subjected land and properly by the petitioners.

e) to issue a writ of or in the nature of mandamus and/or any other appropriate writ/s, order/s or direction/s permitting the petitioners to raise construction over their land in terms of building plan previously sanctioned before the acquisition or to seek such sanction afresh and direct the respondent no.4 to do what is necessary, on receipt of such application from the petitioners, in a time bound manner.

f) to issue a writ of or in the nature of mandamus and/or any other appropriate writ/s, order/s or direction/s restraining the respondent nos.1 to 3 to exercise the constitutional authority, power and duties of the elected municipal bodies against the petitioners subjected land and properties.

g) to impose severe penalty/cost upon the respondent nos. 1 to 3 for abducting the constitutional powers of the elected municipal authorities and for abusing and misusing their statutory powers deliberately in detriment to the petitioners‟ constitutional and statutory rights; and

h) to award suitable compensation to the petitioners for undue harassment, mental agony, pain, injury and damages caused to them by the derelict discharge of their constitutional and statutory duties by the respondent nos. 1 to 3.

i) to pass any such and further orders as this Hon‟ble Court may deem fit and proper in the facts and circumstances of the present application and in the interest of justice and fairness."

8. The relevant portion of the impugned judgment including the

portion of the Division Bench judgment in East End Apartments

Cooperative Group Housing Society (supra), which the learned Single

Judge has relied upon, is reproduced hereinbelow:-

"6. Counsel for the respondent DDA submits that the present petition is misconceived and a gross abuse of the process of this Court. It is submitted that petitioners as members of the Ashok Nagar Welfare Association as well as individual have already exhausted the remedies available. Counsel also submits that the entire history has been noticed by a Division Bench of this Court in the case of East End Apartments Cooperative Group Housing Society Vs. Delhi Development Authority [W.P.(C)No.3326/2006 with CM No.1558/2007 and W.P.(C)No.311/2008] reported in 157 (2009) DLT 272. Counsel for the DDA has relied on paras 7 to 13, 15, 16, 18, 26, 27, 34 and 35, which are reproduced below:-

7. The Ashok Nagar Welfare Association (hereinafter for brevity's sake referred to as the ‗plaintiff Association') through its President Mr. Mohan Singh had filed a writ petition bearing CWP No. 1507/84 challenging Notifications dated 17th November, 1980 and 29th September, 1981 claiming that land bearing Khasra Nos. 391/263, 392/264, 393/264 and 402/268 was sold to its members between 1972-78 by one Jawaharlal who was the owner of the land. The contention raised in the petition was that wide publicity was not given to the notice under Section 4 of the Act and no individual notice was given to the members of the plaintiff Association. The writ petition came to be dismissed by the Division Bench of this Court on 21st May, 1998 holding that failure to give individual notice to the members of the Association does not invalidate the acquisition proceedings. In Paragraph 10 of the said judgment it was noted that possession of the acquired land was taken over on 1st October, 1982 and the land was placed at the disposal of the DDA under Section 22 of the DDA Act vide Notification dated 14th October, 1982. It was held that under the Land Acquisition Act, after possession of the land is taken over, the acquired land vests in the State free from all encumbrances. It may be mentioned that during the pendency of this petition an order of status quo was passed which stood vacated on dismissal of the writ petition. The SLP preferred against the said judgment was dismissed in limine by the Supreme Court on 6th July, 1998.

8. The plaintiff Association then filed a second writ petition bearing WP(C) No. 1158/96 seeking a mandamus for regularization of the colony in Khasra No. 391/263 in respect of which the Association had claimed rights in earlier CWP No. 1507/1984. WP(C) 1158/96 was dismissed by the learned single Judge of this Court on 12th July, 1999 in view of the judgment dated 21st May, 1998 passed in CWP No. 1507/84. LPA No. 354/99 preferred against the said order dated 12th July, 1999 of the learned Single Judge was dismissed by the Division Bench on 11th July, 2000. SLP(C) No. 19499/2000 of the Association was also dismissed by the Supreme Court on 8th December, 2000. With this, the plea for regularization for the unauthorised colony in the above Khasra No. 391/263 also came to be dismissed by this Court and confirmed by the Supreme Court.

9. The plaintiff Association then initiated a third round of litigation in this Court by filing W.P.(C) No. 6268/98 praying for quashing of the award dated 30th September, 1982 on the ground that DDA had abandoned the award by initiating proceedings for regularization of the unauthorised colony on the land. A learned Single Judge of this Court dismissed this writ petition vide order dated 13th September, 2000 holding that the issue was covered by the earlier judgment dated 21st May, 1998 in CWP No. 1507/84. Against the said order of the learned single Judge, LPA No. 15/2001 was filed by the plaintiff Association which came to be dismissed by the Division Bench on 15th October, 2001. SLP(C) No. 4072/2002 preferred by the Association was dismissed as withdrawn by the Supreme Court by order dated 31st January, 2003.

10. Notwithstanding all these proceedings, the plaintiff Association filed one more writ petition bearing W.P.(C) No. 265/2001 in this Court praying that an inquiry be held as to how the compensation was disbursed in respect of 141 Bighas 15 Biswas of land which included land which is the subject-matter of the present petition. This writ petition was also dismissed by a Division Bench of this Court vide order dated 8th May, 2003 holding that there was no dispute that possession had been handed over to the appropriate authority and that the plaintiff Association could not approach the Court by filing the writ petition. The SLP filed by the Association in the Supreme Court was also dismissed.

11. CM(M) arises out of Suit No. 1066 of 1990 filed by the Association. This suit was originally filed in High Court and was subsequently transferred to the trial Court vide order dated 6th August, 1993 where it was registered as Suit No. 222/1998. In this suit, the plaintiff Association had claimed that it was the owner and in

possession of land bearing Khasra No. 391/263 measuring 13 Bighas. It was further claimed that defendants 1 to 37 i.e. respondent Nos. 4 to 40 in CM(M), had encroached upon the land by dispossessing the members of the plaintiff Association. In this suit, the Association did not make the DDA or Union of India or the Govt. of NCT parties. However, the plaintiff Association averred in the suit that it had filed CWP No. 1507/1984 challenging the notifications under Sections 4 and 6 of the Land Acquisition Act and the Award 39/82- 85 and an order of status quo had been passed by this Court in the writ petition. In view of this, the High Court was pleased to implead DDA, Union of India and Delhi Administration as the defendants in the suit. Vide order dated 26th May, 1992, the plaintiff Association was directed to file amended memo of parties. This order was, however, not complied with. In the meantime, the suit was transferred to the trial Court. The defendants including DDA were proceeded ex parte but since there was failure to supply correct status regarding compliance of direction to file amended memo of parties, the ex parte order was set aside. Finally the amended memo of parties was filed on 1st August, 1998. The trial Court ordered for service of summons on the newly added defendants, namely, DDA, Union of India and Delhi Administration on 22nd September, 1998. Thereafter the trial Court was pleased to proceed ex parte against DDA as well as other defendants for non-appearance despite service of summons and an ex parte decree was passed on 6th January, 1999. According to the DDA, it was never served with summons in the said suit and had no knowledge of its pendency. The DDA learnt about the ex parte decree only on 29th August, 2000 after the filing of Execution Petition No. 74/1999 by the plaintiff Association.

12. On 21st November, 2000, the DDA moved the trial Court under Order 9 Rule 13 for setting aside the ex parte judgment and decree dated 6th January, 1999. It is seen from the records that DDA led evidence to show that it had not been served with any of the summons and that there was no mention of receipt of such summons in the DDA records. The DDA also produced the photocopy of Dak Register pertaining to the month of August, 1998 in order to show that no summons in respect of Suit No. 222/1998 (Suit No. 1066/1990) was received by the DDA. The DDA also led evidence to show that the seal alleged to have been used to acknowledge receipt was never used by the department in receiving the summons from different agencies. The trial Court, however, dismissed the application under Order 9 Rule 13 on 23rd July, 2005 on a technical ground that it was not

accompanied by application for condonation of delay under Section 5 of the Limitation Act and that there was delay of 35 days in filing the application and no sufficient cause was shown.

13. At this stage, it may be noted that the plaintiff Association had also filed another suit, being Suit No. 649/1990 where again it contended that it was the owner and in actual physical possession of land measuring 141 Bighas and 15 Biswas in Khasra Nos. 391/263, 392/264, 393/264 and 402/268. In the said suit relief was claimed in respect of 13.4 Bighas out of Khasra No. 391/263 forming part of Plot Nos. 66-120, 157-162 and 208-212. The DDA raised an objection that the suit was not maintainable as the physical possession of the said land had already been taken on 1st October, 1982 and no portion of Khasra No. 391/263 was owned or possessed by the plaintiff Association. It was further contended by the DDA that the site was lying vacant and a boundary wall had been constructed by the DDA. The Civil Judge, Delhi dismissed Suit No. 649 of 1990 holding that a suit for possession is not maintainable since the land stood acquired under the Land Acquisition Act and the same was placed at the disposal of the DDA. It may be stated that against the dismissal of the said suit, the plaintiff Association filed an appeal, being RCA No. 3/2005, which was dismissed as withdrawn after recording the statement of the President of plaintiff Association to the effect that the Plot Nos. 66-120, 157-162 and 208-212 falling in Khasra No. 391/263 had merged in the changing road due to construction of new bridge over Hindon Canal and land across the road and some land/plots had been taken possession of by GAIL and the Irrigation Department.

xxx xxx xxx

15. Coming then to WP(C) No. 3326/2006 filed by East End Apartment Cooperative Group Housing Society it is seen that the grievance of the society is that despite the fact that the property in question was acquired as far back as in 1982 for which an award was passed on 30th September, 1982 the suit has been decreed ex parte and in execution, the plaintiff Association has been put in possession on which it has no right, title or interest in view of the fact that land has already been vested in the State Government and has been entrusted to the DDA. It has been brought on record that in respect of the adjoining land being Khasra No. 393/264, a similar suit was filed and an ex parte decree was obtained by the Association and in appeal, that ex parte decree was set aside by a Division Bench of this Court holding that the report on the summons was fake and was deliberately

manipulated to make it appear that service had been effected. It is also pointed out that in the said judgment it was held that a fraud had been played by the plaintiff Association in obtaining the ex parte decree. The said judgment of the Division Bench (Vol. 90 2001 DLT 583) was confirmed by the Supreme Court in (2002) 1 SCC

16. In WP(C) No. 3326 of 2006 an order came to be passed by the Division Bench of this Court on 7th March, 2006 restraining the plaintiff Association from raising and/or making any construction over the land in question. On 12th November, 2007, the Division Bench recorded the statement of the learned Counsel appearing for the plaintiff Association that Mr. Mohan Singh has filed an affidavit offering to surrender the possession of 6 Bighas in Khasra No. 391/263 on certain terms and conditions stipulated in the affidavit. Learned Counsel also stated that the plaintiff Association is ready and willing to hand over the possession of whatsoever extent of land is in its possession in Khasra No. 391/263 and the Court may direct a proper inquiry into the circumstances in which a major part of the 920 Bighas of land acquired has been occupied by unauthorised persons. The Counsel further stated that Mr. Mohan Singh can make a solemn statement before the Court regarding the willingness of the Association to surrender the possession of the land in question. The Division Bench directed Mr. Mohan Singh to appear before the Registrar General of this Court on 14.11.2007 to get his statement recorded. The Registrar General was directed to get the following aspects verified from Mr. Mohan Singh:

―(1) What is the basis on which Ashok Nagar Welfare Association and Maha Kaleshwar Welfare claim title and possession over different parts of land acquired by the DDA in the village mentioned earlier. In particular, is there any document registered or otherwise executed by anyone owning any right or interest in the land in favour of anyone of the two Associations. If so, a copy of the document be got produced by Shri Mohan Singh.

(2) In case, the Associations have no document of title in their possession, what is the basis on which the members of the Associations claim title to any portion for the lands acquired by the DDA in the village mentioned above. Copies of the documents of title, if any, available with the Associations may

be produced by Shri Mohan Singh.

(3) What is the total number of cases instituted by Shri Mohan Singh in the name of Ashok Nagar Welfare Association or Maha Kaleshwar Welfare Association are in different Courts in Delhi and what has been the result in the said cases in relation to the lands acquired by the DDA in the village mentioned above. In particular, are there any case over and above those mentioned at page No. 336 of the writ petition file. If so, the particulars of the said case may also be given.

(4) Whether respondent No. 2 Association is willing to surrender possession of the land in its occupation as offered by Mr. Niyazi, its Counsel?‖

The Division Bench also asked the learned Counsel of respondent DDA whether it is ready and willing to transfer and/or allot the land in question in favour of DMRC for construction of the Metro Station at Ashok Nagar in terms of requisition sent by DMRC to it after the order dated 14.11.2007.

18. In the meanwhile Mr. Mohan Singh who appeared before the Registrar General on 14th November, 2007 backtracked from his statement. He now stated that he needed to convene a meeting of the members of the Association to seek their approval for making a statement regarding surrender of possession of the land. In his statement he also claimed to have filed 85 cases in respect of the land in question including the cases detailed in Annexure 11 Mark ―A‖ and promised to give details of those proceedings after consulting record of the plaintiff Association. The material part of the statement of Mr. Mohan Singh is reproduced below:

―I am aware that in November, 1980 a Notification under Section 4 of the Land Acquisition Act, 1894 was issued seeking to acquire 920 Bighas and 9 Biswas of land situated at Village Chilla Saroda Bangar, Delhi, for planned development which included the land which is the subject matter of writ petition except 5 Bighas 8 Biswas of land out of Khasra No. 391/263 which were not subject matter of Notification for acquisition. However, respondent No. 2 Association as its members did not receive the notice of notification issued under Section 4 of the Land Acquisition Act. I am now aware that Notification under section was followed by

Notification under Section 6 of the Land Acquisition Act, 1894 pursuant to which the Award was passed by the Land Acquisition Collector on 30th September, 1982 acquiring 920 Bighas 9 Biswas of land situated in Village Chilla Saroda Bangar, Delhi. However, respondent No. 2 Association as its members did not receive any notice of Notification under Section 6 of the Act also.

In the year 1984 I came to know about the aforesaid Award passed in respect of acquisition of 920 Bighas and 9 Biswas of land, therefore, I filed a writ petition on behalf of the respondent No. 2 in Delhi High Court bearing No. W.P. (C) No. 1507/1984 challenging the above said Notifications. In the said writ petition, respondent No. 2 claimed that the land bearing Khasra Nos. 391/263, 392/264, 393/264 and 402/268 measuring about 141 Bighas and 15 Biswas was sold to members of the respondent No. 2 in bits and pieces during the period between 1972-78 by one Jawahar Lal, who was owner of the aforesaid land besides some other owners.

Association was dismissed by the Division Bench of the High Court of Delhi in the year 1998. Respondent No. 2 filed an SLP against the order of dismissal of the writ petition by the High Court but SLP was also dismissed by the Hon'ble Supreme Court.

Members of the respondent No. 2 Association have documents of title in their favour pertaining to 141 bighas of land regarding which we had challenged the Award in the WP(C) No. 1507/1984. I can produce those documents of title, if need be. All documents of title which I have referred to pertained to the period prior to initiation of acquisition proceedings and passing of Award.

In the year 2003 with a view to tide over the legal difficulties pertaining to filing of the suits to protect the interests of members of the Association, the then President of respondent No. 2 Association, Mr. Shankar Das Thakur, constituted one other Association known as Maha Kaleshwar Welfare Association and got it registered under Societies Registration Act. Thereafter, by virtue of my Power of Attorney I transferred entire 141 Bighas of land forming part of the entire chunk of 920 Bighas and 15 Biswas vide several separate Assignment Deeds to Maha Kaleshwar Welfare Association. The owners of various plots forming part of those 141 Bighas of land thus became members of Maha Kaleshwar Welfare Association. It was decided by

the executive body that some cases which were instituted on behalf of respondent No. 2 Association would continue to be pursued by the same Association. I have not brought any of those Assignment Deeds or Resolution of executive body. I have seen Annexure - 11 mark ―A‖ to the writ petition which is at page 336 of the file which contains list of 45 cases including writ petitions, LPAs, etc. which have either been dismissed or are pending, filed by respondent No. 2 Association as well as Maha Kaleshwar Association. This is not a complete list of matters filed by the above said two Associations in different Courts. Total number of cases filed by us including writ petitions, appeals, executions, civil suits, etc. is about 85 which include the cases detailed in the Annexure - 11 mark A. At present, I am not in a position to give details, however, I can submit complete details in the Court after consulting record of the Association. Some of the members of the Association are agitated because of my filing affidavits in the Court on 8.11.2007 and they have seized the record. Therefore, there is slight difficulty in giving a complete information to the Court. Those members are Mr. P.C. Sharma, Mr. Sanjay Tandon, Mr. Hargobind, Mr. Rajesh Jain, Mr. R.K. Sharma, Mr. Dharampal, Ms. Neera Gupta, Ms. Kusumkar Sood, Mr. Sham Lal, etc.) The aforesaid record is available at office of the respondent No. 2 Association as well as Maha Kaleshwar Welfare Association located at A-11/1, Pandav Nagar, Delhi-110092 which has been locked by the aforesaid persons. They are saying that they will allow him to take the records only after I explain the facts to them.

Today, I am not in a position to commit that respondent No. 2 Association or Maha Kaleshwar Welfare Association or their members would surrender possession of land in their occupation, as offered by my Counsel in the Court subject to certain conditions stipulated in my affidavit dated 7.11.2007. I need some time to convene a meeting of the members of the respective Associations to seek their approval for making a statement regarding surrender of possession of the land in occupation of respondent No. 2 Association or Maha Kaleshwar Welfare Association.‖

26. According to the learned Counsel for the plaintiff Association it had no intention or motive to suppress the

dismissal of the writ petition and this fact had been disclosed in the written submissions filed on behalf of the Association before the trial Court. In our view the argument is wholly fallacious. In this one page written submissions filed on behalf of the Association on 19th December, 1998 it was merely stated that the writ petition has been disposed of and SLP has also been dismissed by order dated 6th July, 1998. The fact that the writ petition was dismissed on 21st May, 1998 and the status quo order was vacated was not disclosed in the written submissions which the Association had filed on 19th December, 1998. A party must come to the Court with clean hands and must disclose all the relevant facts which may result in appreciating the rival contentions of the parties. In our view, a litigant, who approaches the Court, must produce all the documents which are relevant to the litigation and he must disclose to the Court about pendency of any earlier litigation between the parties and the result thereof. It was obligatory on the part of the Association to disclose to the civil Court that its writ petition filed in the High Court had been dismissed and the interim order was vacated. In our view, if these facts had been disclosed before the civil Court when the suit came up for hearing, the Court would not have been persuaded to pass a decree in favour of the plaintiff.

27. It is a settled legal position that in a suit under Section 6 of the Specific Relief Act a plaintiff has to prove that he was dispossessed within a period of six months prior to the suit. It is clear from the above narration that the plaintiff Association could not have succeeded in view of the fact that the possession of the land had already been taken by the Collector and the land stood vested in the State Government. In our opinion, the Association suppressed the material facts from the civil Court with a view to securing a decree under Section 6 of the Specific Relief Act. The Association founded its case before the civil Court on a false plea which it knew to be false, it suppressed the order of the High Court dismissing its writ petition. This clearly amounts to practising fraud on the Court. The civil Court had passed a decree in favour of the plaintiff Association only based on its plea that the writ petition was pending in the High Court and an order of status quo was in operation. It is clearly seen that when it made the claim, the Association had neither any title nor valid possession over the land. It was not a case of mere perjured evidence, it was suppression of the most vital fact and founding of a claim on a non-existent fact. It was done intentionally and deliberately with the intention to

deceive. Therefore, in our opinion, it is established without an iota of dispute that the plaintiff Association had procured a decree from the trial Court by practising fraud on it. This is a case where on a very fundamental fact of entitlement to relief the Association had deliberately misled the Court by suppressing vital information and put forward a false claim, false to its knowledge and a claim which it knew had no basis either in fact or in law.

34. In the present case the plaintiff Association filed a series of writ petitions in this Court challenging the acquisition and all those writ petitions were dismissed. In spite of dismissal of the writ petitions the Association has kept on filing the suits under Section 6 against private parties and obstructing the course of justice after this Court dismissed the CWP No. 1507/1984. In our opinion, this prima facie amounts to a criminal contempt as laid down in Advocate General, State of Bihar v. Madhya Pradesh Khair Industries and Anr., 1980 (3) SCC 311; Bloom Dekor Limited v. Subhash Himatlal Desai & Ors., (1994) 6 SCC 322 and Delhi Development Authority v. Skipper Construction, (1995) 3 SCC 567. This is not a case of a stray act but deliberate repetitive acts of filing series of suits with a view to grab the land which has been vested in the State Government more than 25 years back. The conduct of the plaintiff Association tends to bring the authority and administration of justice into disrepute and even disregard. It also tends to seriously affect the rights of the parties in the litigation, which is seen from the fact that the plaintiff Association managed to get possession of DDA land by resorting to dubious methods.

35. In the light of the foregoing discussion, we pass the following orders:

(i) CM(M) No. 1558/2007 is allowed and the impugned decree dated 6th January, 1999 and the order dated 23rd July, 2005 dismissing the application under Order 9 Rule 13, CPC are quashed and set aside. Suit No. 222/1998 is dismissed and the execution proceedings in Execution No. 74/99 (now Execution No. 18/04) are also dismissed. Mr. Mohan Singh shall pay the cost of CM (M) to the DDA, quantified at Rs. 10 lacs. The costs shall be payable within a period of eight weeks from today failing which the DDA is at liberty to recover the same in accordance with law.

(ii) Registry is directed to ascertain the status of the various proceedings mentioned in paragraph 19 of the judgment and all these proceedings which are

pending as of date before the Courts subordinate to this Court shall stand withdrawn to this Court and be placed before this Bench on 15th December, 2008 for passing further orders. In the meantime, Ashok Nagar Welfare Association, Mahakaleshwar Welfare Society and Mr. Mohan Singh, who is claiming to be the President of these societies, are restrained from filing/instituting or initiating any proceedings, whether civil or criminal, in respect of 141 Bighas and 15 Biswas of land and any other land which forms the subject matter of Award No. 39/82-83 dated 30th September, 1982.

(iii) Criminal case filed by Mr. Mohan Singh being Criminal Case No. 1346/2008 shall also be withdrawn to this Court and be placed before this Court on 15th December, 2008.

(iv) Let the Registry issue a notice to Mr. Mohan Singh s/o Mr. M.L. Singh, without process fee, to show cause as to why he should not be punished for contempt of Court for the following acts--

(a) procuring a decree in Suit No. 222/1998 (Suit No. 1066/1990) by suppressing the fact that the writ petition of the plaintiff Association was dismissed and status quo was vacated, and

(b) repeatedly filing suits and proceedings in respect of Khasra No. 391/263, 392/264, 393/264 and 402/268 in spite of the fact that possession of the said land was taken pursuant to the award No. 39/82-83 and the land stood vested in the State Government and the petitions filed by the plaintiff Association were dismissed by the High Court and orders of the High Court were confirmed by the Supreme Court.

(v) DMRC is free to proceed with the construction of the Metro Station in the land allotted by the DDA in terms of the orders dated 20th December, 2007 and 4th January, 2008 and the DMRC will be free to deal with the said land in terms of the letter of allotment and the restriction regarding the user of the land placed by the orders dated 4th January, 2008 stands withdrawn.

(vi) In view of the above directions, no further orders are necessary in Writ Petition (C) No. 3326/2006 and the same stands disposed of.

(vii) Writ Petition (C) No. 311/2008 is hereby dismissed. Mr. Mohan Singh shall pay the cost of Rs. 2.5 lacs each to DDA and DMRC. The cost shall be payable within a period of eight weeks from today failing which the DDA and DMRC will be

entitled to recover the same from Mr. Mohan Singh in accordance with law.

7. Learned counsel for the petitioners submits that the regularization process of unauthorised colonies by the respondents cannot be carried out as it is the DDA itself, which has failed to protect its own possession.

8. Counsel for the DDA submits that all the grounds raised by the petitioner in this writ petition have already been dealt with by earlier petitions, which have been filed on behalf of the petitioners by the association and have attained finality. The plea raised by the petitioner with regard to the compensation paid without proper verification of the title has also been dealt with by the Division Bench in para 10 of this decision. The Division Bench has also dealt with another submission made in para 8 of the writ petition with regard to plea for regularization of unauthorised colonies, which was dismissed by this Court and confirmed by the Supreme Court. As far as the plea raised by the petitioners with regard to the acquisition proceedings being bad in law a Division Bench of this court in W.P.(C) No. 1507/1984, Ashok Nagar Welfare Association Vs. UOI, decided the same on 21.5.1998. The petitioners admittedly being members of Ashok Nagar Welfare Association have participated in all these proceedings. The acquisition proceedings were upheld in the year 1998. Thereafter the Association has filed as many as 85 proceedings, which has led this Court to take a serious view with regard to conduct of the Ashok Nagar Welfare Association. The Division Bench has not only imposed cost in the sum of Rs.10.00 lakhs and Rs.2.5 lakhs, each, on the President of the Association but the Court has also initiated contempt proceedings against the President of the Society. The conduct of the petitioners is no different and they are to be dealt in the same way. I find no force in the submission of learned counsel for the petitioner that since the plea of the petitioners was not appreciated by various courts it is open for them to re-agitate the question till their grievances are met. The questions raised by the petitioners in this writ petition has already attained finality and the same cannot be reopened. Even otherwise the land was acquired as far back as in the year 1982, the possession for which they have filed a suit for possession also stands dismissed. Accordingly, present petition is misconceived and without any merit, the same is dismissed, subject to

repayment of costs of Rs.50,000/ to be paid by each petitioner to the DDA within ten weeks."

9. In Greenhalgh Vs. Mallard (1947) 2All ER 255, the Court held

that different proceedings on the same cause of action for conspiracy,

but supported by different averments can be met with the plea of res

judicata or the plaint can be struck out on the ground that the action is

frivolous and vexatious. In the aforesaid case, the Court held that if the

plaintiff has chosen to put his case in one way, he cannot thereafter

bring the same transaction before the Court, put his case in another way

and say that he is relying on a new cause of action.

10. In Mcllkenny Vs. Chief Constable of West Midlands Police

Force (1980) 2 All ER 227, the Court of appeal in England struck out

the pleading on the ground that the action was an abuse of the process

of the Court since it raised an issue identical to that which had been

finally determined at the plaintiff's earlier criminal trial. The Court held

that even when it is not possible to strike out the plaint on the ground of

issue estoppel, the action can be struck out as an abuse of the process of

the Court because it is an abuse for a party to relitigate a question or

issue which has already been decided against him even though the other

party cannot satisfy the strict rule of res judicata or the requirement of

issue estoppel.

11. In the case of Arnold v. National Westminster Bank Plc., 9

(1991) 3 All ER 41, the House of Lords noticed the distinction between

cause of action estoppel and issue estoppels and held that "Cause of

action estoppel arises where the cause of action in the later

proceedings is identical to that in the earlier proceedings, the latter

having been litigated between the same parties or their privies and

having involved the same subject-matter. In such a case, the bar is

absolute in relation to all points decided unless fraud or collusion is

alleged, such as to justify setting aside the earlier judgment. The

discovery of new factual matter which could not have been found out by

reasonable diligence for use in the earlier proceedings does not,

according to the law of England, permit the latter to be reopened. ......

Issue estoppel may arise where a particular issue forming a necessary

ingredient in a cause of action has been litigated and decided and in

subsequent proceedings between the same parties involving a different

cause of action to which the same issue is relevant, one of the parties

seeks to reopen that issue."

12. Relying on Greenhalgh (supra) and Mcllkenny (supra), the

Supreme Court in the case of K.K. Modi Vs. K.N. Modi & Ors. (1998)

3 SCC 573 held that "It is an abuse of the process of the Court and

contrary to justice and public policy for a party to relitigate the same

issue which has already been tried and decided earlier against him.

The reagitation may or may not be barred as res judicata. But if the

same issue is sought to be reagitated, it also amounts to an abuse of the

process of the Court. A proceeding being filed for a collateral purpose,

or a spurious claim being made in litigation may also in a given set of

facts amount to an abuse of the process of the Court. Frivolous and

vexatious proceedings may also amount to an abuse of the process of

the Court especially where the proceedings are absolutely groundless."

13. Keeping in view the aforesaid, in particular the judgment of the

Division Bench of this Court in East End Apartments Cooperative

Group Housing Society (supra) and the order of the Supreme Court

dated 23rd March, 2009 in SLP(C) No. 5911/2009, the present appeal

and application are dismissed as an abuse of the process of Court with

costs of Rs.25,000/- to be paid to respondent-DDA within four weeks

from today. The said costs are in addition to the costs imposed by the

learned Single Judge while dismissing the appellants' writ petition.

MANMOHAN, J

CHIEF JUSTICE

AUGUST 05, 2010 js/rn