Delhi Development Authority vs Kela Devi
2010 Latest Caselaw 4843 Del

*     HIGH COURT OF DELHI: NEW DELHI

      CM (M) No. 1150/2010 & CM No. 16070/2010

%     Judgment reserved on: 5th October, 2010

      Judgment delivered on: 20th October, 2010

      Delhi Development Authority
      Through its Vice Chairman
      INA, Vikas Sadan
      New Delhi                             ....Petitioner.
                        Through: Mr. Rakesh Mittal, Advocate.

                   Versus
      Kela Devi
      w/o Late Sh. Gopi Ram @ Gopi Chand
      R/o H.No. 45 & 45-A, Harijan Basti,
      Sawan Park Extension
      Ashok Vihar, Phase-III
      New Delhi-110052                            ....Respondent
                        Through: None

CORAM:
HON'BLE MR. JUSTICE V.B. GUPTA

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

2. To be referred to Reporter or not?                  Yes

3. Whether the judgment should be reported
   in the Digest?                                      Yes

V.B.Gupta, J.

Present petition under Article 227 of the Constitution of India

has been filed by petitioner seeking quashing of order dated 10th

March, 2010 passed by Additional District Judge, Delhi.

2. Brief facts of this case are that respondent had filed a suit for

permanent injunction against the petitioner claiming that her husband

has occupied a piece of land in the year 1965/1966 out of Khasra Nos.

712/673 and 713/673, Village Wazirpur, Delhi and started residing

there after raising a Kuccha structure and started keeping cattles

thereupon on about 260 sq. yds. On the remaining portion, respondent

planted trees and developed the same. The case of respondent is that

the suit property falls on private land and only rest of the land has

been acquired.

3. Alongwith the suit, respondent filed an application under Order

39 Rules 1 & 2 of the Code of Civil Procedure (for short as „Code‟)

seeking injunction against the petitioner not to interfere in any manner

with the possession of the respondent over the land in question.

4. Petitioner in its written statement took the stand that respondent

is not in possession of Khasra Nos. 712/673 & 713/673 of Village

Wazirpur, Delhi as claimed by the respondent. In fact, respondent has

encroached upon the Government land which falls under Khasra No.

680 min and 692 min. The said land along with land in Khasra No.

712/673/1 is acquired land and has been placed for disposal before the

Petitioner Authority and as such respondent is not entitled to any

relief in equity.

5. Trial court, vide order dated 11th December, 2009 allowed the

application of the respondent filed under Order 39 Rules 1 & 2 of the

Code and restrained the petitioner from interfering with the possession

of the respondent, till the final disposal of the suit.

6. Petitioner filed an appeal against the order of trial court.

Appeal of the petitioner was dismissed, vide impugned orders by the

First Appellate Court.

7. It has been contended by learned counsel for petitioner that the

Civil Judge after considering the demarcation reports and relying

upon the fact that the land in question comes under Khasra No. 680,

wrongly concluded that the land in possession of the respondent may

fall apart from Khasra No. 680/1, 680/2 and 680/3, which has already

been acquired by the petitioner and physical possession of which was

taken by the petitioner on 1st September, 1962. Since the land in

question has already been acquired, respondent under these

circumstances is a trespasser on the Government land and the Courts

below wrongly concluded that there is prima facie case in favour of

the respondent.

8. Present petition has been filed under Article 227 of the

Constitution of India. It is well settled that jurisdiction of this Court

under this Article is limited.

9. Article 227 of The Constitution of India reads as under;

"227. Power of superintendence over all courts by the High Court- (1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.

(2) Without prejudice to the generality of the foregoing provisions, the High Court may-

(a) call for returns from such courts;

(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and

(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts.

(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practicing therein;

Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law

for the time being in force, and shall require the previous approval of the Governor.

(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed forces."

10. In Waryam Singh and another Vs. Amarnath and another,

AIR 1954, SC 215, the court observed;

"This power of superintendence conferred by Article 227 is, as pointed out by Harries, C. J., in -„Dalmia Jain Airways Ltd. V. Sukumar Mukherjee‟, AIR 1951 Cal 193 (SB) (B), to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors."

11. In Mohammed Yusuf Vs. Faij Mohammad and Ors., 2009 (1)

SCALE71, Supreme Court held;

"The jurisdiction of the High Court under Article 226 & 227 of the Constitution is limited. It could have set aside the orders passed by the Learned trial court and Revisional Court only on limited ground, namely, illegality, irrationality and procedural impropriety".

12. In State of West Bengal and Ors. Vs. Samar Kumar Sarkar,

JT 2009 (11) SC 258 Supreme Court held;

„10. Under Article 227, the High Court has been given power of superintendence both in judicial as well as administrative matters over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. It is in order to indicate the plentitude of the power conferred

upon the High Court with respect to Courts and the Tribunals of every kind that the Constitution conferred the power of superintendence on the High Court. The power of superintendence conferred upon the High Court is not as extensive as the power conferred upon it by Article 226 of the Constitution. Thus, ordinarily it will be open to the High Court, in exercise of the power of superintendence only to consider whether there is an error of jurisdiction in the decision of the Court or the Tribunal subject to its superintendence.

12. In Bathutmal Raichand Oswal Vs. Laxmibai R. Tarta (AIR1975SC1297) this Court again reaffirmed that the power of superintendence of the High Court under Article 227 being extraordinary was to be exercised most sparingly and only in appropriate cases. High Court‟s function is limited to see that the subordinate court or Tribunal functioned within the limits of its authority. The Court further said that the jurisdiction under Article 227 could not be exercised as the cloak of an appeal in disguise.‟

13. In Laxmikant Revchand Bhojwani and Anr. Vs. Pratapsing

Mohansing Pardeshi Deceased through his Heirs and Legal

representatives, JT 1995(7)SC400, Apex Court observed;

"The High Court under Article 227 of the Constitution of India cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice, where grave injustice would be done unless the High Court interferes."

14. In light of principles laid down in the above decisions, it is to

be seen as to whether this petition under Article 227 of the

Constitution of India, against impugned orders is maintainable or not.

15. It is an admitted case of the petitioner that, respondent is in

occupation of the Government land, though as an unauthorized

occupant. When admittedly, respondent is in the occupation of the

land in question though as an unauthorized occupant, even then he

cannot be evicted from land in question, except by due process of law.

16. It is petitioner‟s own case that, land in question was acquired in

the year 1962 and physical possession of the same was taken on 1 st

September, 1962. Then how after obtaining the physical possession of

the land in question, petitioner has permitted the respondent to occupy

or stay in the Government land for last so many years.

17. The trial court in this regard observed:-

"After the demarcation report, there is no dispute with the identity of land however perusal of the notifications dated 03.08.63 and 05.09.64 shows that land falling in Khasra no. 680/1, 680/2 and 680/3 only had been placed at the disposal of DDA. It means that whole of khasra no. 680 has not been acquired. Plaintiff has shown her settled possession in the property bearing no. 45-A and as per MCD, property falling in 45 is old and occupied. In view of this, application is hereby allowed and DDA is hereby restrained from interfering with the possession of the plaintiff of the property bearing no. 45 and 45-A,

Harijan Basti, Sawan Park Extn., Ashok Vihar, Phase- III, Delhi-52 till the final disposal of the suit. Interim order passed on 21.09.06 stands confirmed."

18. While, First Appellate Court in impugned order held;

"Be that as it may, admittedly, the respondent is in possession of the suit premises. It cannot be said with certainty at this stage as to whether the suit property falls in Khasra No. 712 & 713 or in Khasra No.680. I am in agreement with the submissions of Ld. Counsel for the respondent that the demarcation reports are not a concrete and conclusive evidence regarding the situation of the land in question and same cannot be relied upon without calling for proof of the same.

It is a settled position of law that a person in settled possession of land cannot be dispossessed without affording opportunity him to prove his case before the Court."

19. As per petitioner‟s case, respondent is a trespasser and an

unauthorized occupant of the Government land, since 1962, then I fail

to understand as to what prevented the petitioner from taking action

against the respondent in accordance with the provisions of law. It is

apparent that petitioner‟s officials are gross negligent and careless in

performing their duties. During last more than 50 years they have not

taken any action against the respondent, (so called trespasser and

unauthorized occupant of the Government Land).

20. Petitioner authority is having a large army of employees

working under it, but it is manifestly clear that its officials are hand in

glove with the rank trespasser/unauthorized occupants of the

Government Land and that is why thousands of acres of Government

Land is still under illegal occupation of the trespassers.

21. No unauthorized occupant/trespasser can remain in possession

of the Government land for more than 50 years, unless and until

officials of petitioner authority are in collusion with such trespassers.

22. Since, respondent is in occupation of the land in question for

last many years the courts below have rightly granted injunction in

favour of the respondent. It is well settled that where two courts below

gives concurrent finding of facts, this Court under Article 227 of the

Constitution of India, should not disturb the same.

23. In Narain Singh through LRs & Ors. vs. Shanti Devi through

LRs & Ors., 2010 (115) DRJ 601, this court observed:-

"It is well settled that where two courts below have given a concurrent finding of facts, this court under Article 227 of the constitution of India shall not disturb the finding even if there is some mistake committed in appreciation of some part of evidence. Under Article 227, the court does not correct the mistakes of law or mistakes of facts. The intervention of this court under Article 227 has to be only in those exceptional cases where the courts below had either not exercised their jurisdiction or had acted beyond jurisdiction or had ignored the well-settled legal proposition and acted contrary to law."

24. Thus, no fault can be found with the concurrent findings of the

Courts below.

25. Before parting with, this Court must express its deep anguish

over the manner in this petition has been filed. Petitioner being a

statutory body without applying its mind has filed this petition just to

waste the time of this court. It is well known fact that Courts across

the country are saddled with large number of cases and Government

bodies are the biggest litigant in these cases. The courts have been

expressing their displeasure at the statutory bodies compulsive

litigation habit.

26. It has been observed time and again by the Supreme Court and

this Court that frivolous and meritless litigation must be dealt with

heavy hands. Time has come to fix personal responsibility on the

concerned officials. With this measure only frivolous and needless

litigation can be checked. The rise in litigation is also because govt.

departments do not examine the cases properly and goes on filing

frivolous and needless petition in the Court. The frivolous litigation

clogs the wheels of justice, making it difficult for courts to provide

easy and speedy justice to genuine litigants.

27. A strong message is required to be sent to those litigants

(whether Government or Private) who are in the habit of challenging

each and every order of the trial court even if the same is based on

sound reasoning and also to those litigants who go on filling frivolous

applications one after another.

28. Under these circumstances, present petition being meritless,

bogus and most frivolous one, is hereby dismissed with costs of

Rs.50,000/- (Fifty Thousand Only).

29. Petitioner is directed to deposit the costs by way of cross

cheque with Registrar General of this court, within four weeks from

today.

30. Meanwhile, petitioner shall recover the cost amount from the

salaries of delinquent officials who have been pursuing this meritless

and frivolous litigation with the sole aim of wasting the public

exchequer. Affidavit giving details of the officials from whose salary

the costs have been recovered be also filed in four weeks.

CM No. 16070/2010

31. Dismissed.

32. List for compliance on 23rd November, 2010.

October 20, 2010                                   V.B.GUPTA, J.
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