Yashpal & Others vs Govt. Of Nct. Of Delhi & Others
2011 Latest Caselaw 2021 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                               Date of Reserve : 2.07.2010
                                                            Date of decision: 07.04.2011

+                      CM 13579-80/2006 IN WP(C) No. 11740-41/2006 AND

                   CCP 1273-73/2006 & C.M. Nos. 12885/2008, 11973/2009

       YASHPAL & OTHERS                                               ......PETITIONERS

               Through : Mr. Surender Kumar, Advocate

                                                      VS

       GOVT. OF NCT. OF DELHI & OTHERS                                ......RESPONDENTS

Through : Mr. V. Madhurkar with Mr. Sachin Dev Sharma and Mr. Hakikat Yadav, Advocates for respondent Mr. Hari Prakash.

Mr. Mukesh Gupta, Advocate for MCD.

CORAM:

       HON'BLE MR. JUSTICE S. RAVINDRA BHAT

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

2.     To be referred to Reporter or not?             YES

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


MR. JUSTICE S.RAVINDRA BHAT

1. This common order will dispose of review petitions (CM 13579-80/2006 hereafter "the review petition") originally filed as application for restoration of the writ petition, and a contempt proceeding, i.e. CCP Nos. 1273-74/2006.

2. Two writ petitioners (Yashpal s/o Nand Lal and Shyam Lal s/o late Om Prakash) approached this Court, and filed WP 1740-41/2006. They claimed to be residents of Narela; one of them claimed himself to be user of a public thoroughfare (Rasta Sarai aam) measuring 4 gathas, i.e. 33 feet wide, out of khasra No. 343, Mauza Mamur Pur Pana Udyan, Narela ("the suit land"). The petition alleged that the fifth and sixth respondents (hereafter "contesting parties") started encroaching on the suit land, and constructed unauthorized structure, in collusion with public officials. The petition alleged that in protest, written

CM Nos.13579-80/06 in WP(C) No. 11740-41/06 & CCP Nos.1273-74/2006 Page 1 complaints were made to the concerned authorities, on 13.06.2006 and 22.06.2006. The petitioners annexed copies of certain maps, and a scaled map drawn by a private draftsman. On the basis of these allegations, the Court issued notice in the writ petition, and recorded- by the order dated 24.07.2006, that since the petition averments pointed to encroachment of public lands, the respondents were to maintain status quo till the next date of hearing, which was 18.10.2006.

3. An application, CM 11703/2006, claiming to be under Order XXIII, Rule 1, CPC was filed on 14.09.2006, through a counsel, Mr. Madan Lal Sharma. It was supported by the affidavit of the first petitioner. It averred that the second petitioner expired on 17.08.2006 and that the survivor, i.e. the first petitioner, did not wish to pursue the proceeding. In the circumstances, the application sought dismissal of the writ petition, as withdrawn. The application was listed, for consideration, on 19.09.2006. The Court noted the submission of Mr. Sharma that he had instructions to withdraw the writ petition, and therefore, allowed CM 11703/2006, resulting in the dismissal of the writ petitions, (as withdrawn). Since the writ petition was disposed of before the returnable date (which was 18.10..2006) the Municipal Corporation of Delhi, - apparently unaware of the order of 19.10..2006, filed an affidavit along with report of the concerned executive engineer. It mentioned inter alia, that the Corporation was not owner of Khasra Nos. 343 and 345 in revenue estate Mauza Mamupur, Narela.

4. In this background, the first petitioner preferred the review petition, on 28.10.2006, alleging that he had not authorized the withdrawal of the writ petitions; he sought the recall of the order dismissing the petitions, and its restoration. In the meanwhile, the contempt proceeding was filed on behalf of the petitioner, claiming that despite the previous order of 24.07.2006, the contesting respondents were encroaching on the suit lands, which were of a public nature and character. It was also alleged that the official respondents (in the writ petition) in collusion with the contesting parties, had criminally trespassed into the petitioner's premises, as well as those of his counsel, Shri Surendra Sharma, with the intention of destroying the evidence of having committed contempt of this Court's order. The contempt proceeding was listed before the Court, on 09.10.2006. The Court issued notice, returnable on 18.10..2006. On that date, the Court, taking note of an affidavit filed in the proceeding, recorded that the second petitioner had died, despite which the contempt proceeding had been initiated on his behalf. The Court considered the materials on the record, and directed an enquiry, on various aspects, including whether the writ petitioner had

CM Nos.13579-80/06 in WP(C) No. 11740-41/06 & CCP Nos.1273-74/2006 Page 2 instructed for withdrawal of the petition, and had signed the affidavit in support of the application for withdrawal. After inquiry, the Registrar of this Court filed a report, dated 02.12.2006. In the enquiry proceeding, the Registrar had recorded the evidence of the petitioner, Yashpal, as well as the counsel appearing on his behalf. The report, inter alia, states as follows:

"21. At this juncture, it may be mentioned that application u/o 23 Rule 1 CPC for withdrawal of writ petition was filed on behalf of the petitioner No.1, Sh. Yashpal on 13.09.2006 through Sh. Madan Lal Sharma, Advocate. Sh. Madan Lal Sharma, Advocate has been examined as EW-5 and he has deposed that Sh. Yashpal came to him and was recommended by Sh. S.K. Bhardwaj, Advocate, he was engaged in W.P [C] No. 11740-41/2006 titled as „Yashpal & Ors. Vs. Govt. of NCT of Delhi & Ors.‟ Sh. Yashpal told him that he along with one other person had filed writ petition and he did not want to pursue the said writ petition and wanted to withdraw the said writ petition. Sh. Yashpal also told him that previous counsel was neither giving the case file nor giving No Objection Certificate. He had issued notice dated 01.09.2006 on instructions of Sh. Yashpal, carbon copy of the said notice is Ex. EW4/10, which bears the signatures of Sh. Yashpal at three places i.e. at point A, B and C. He has also deposed that Sh. Yashpal disclosed the facts and produced an incomplete copy of Writ Petition, on the basis of which he prepared an application under Order 23 Rule 1 CPC and obtained the signature of Sh. Yashpal after explaining the contents thereof to him. Sh. Yashpal, signed on the said application, affidavit and carbon copy of the notice after understanding the contents of the same. The petitioner, Sh. Yashpal has admitted his signatures on said application, which is Ex. EW4/8 and affidavit Ex. EW4/9 and copy of notice, which is ex. EW 4/10. Sh. Yashpal has also admitted his signatures on vakalatnama in favour of Sh. Madan Lal Sharma, Advocate which is Ex. EW4/11. The notice dated 01.09.2006, copy of which is Ex. EW4/10 was sent to Sh. Sanjay Kanojia, Advocate through Regd. Post as well as UPC, postal receipt is Ex. EW5/2 and UPC is Ex. EW5/3 whereby he was informed that Sh. Yashpal has engaged him and he was requested to return the case file. Both the receipts are dated 01.09.2006. Sh. S.K. Bhardwaj, Advocate who recommended Sh. Yashpal to Sh. Madan Lal Sharma, Advocate has been examined as EW-6. Both Sh. S.K. Bhardwaj and Sh. Madan Lal Sharma, Advocates have identified the petitioner, Sh. Yashpal. It is not clear as to why Sh. Madan Lal Sharma, Advocate would move an application under Order 23 Rule 1 CPC for withdrawal of the Writ petition, if he was not engaged by Sh. Yashpal. No motive has been alleged by Sh. Yashpal against Sh. M.L. Sharma and Sh. S.K. Bhardwaj, Advocates. There is no reason to disbelieve the testimony of both the said Advocates namely Sh. M.L. Sharma and S.K. Bhardwaj that Sh. Yashpal engaged Sh. M.L. Sharma, Advocate and moved an application for withdrawal of the Writ petition.

       ...........                            ................                   ..............


CM Nos.13579-80/06 in WP(C) No. 11740-41/06 & CCP Nos.1273-74/2006                        Page 3

23. In view of the above, in my opinion the petitioner Sh. Yashpal had not signed on blank papers and filed the Writ petition and contempt petition.

24. As regards, the plea of Sh. Yashpal that his signatures on affidavit dated 17.10.2006, (ex. EW4/12) and Index Ex. EW4/13 were got signed by Sh. Hari Parkash Sharma. Sh. Yashpal in his statement dated 29.11.2006 could not tell when and on whose instance, he signed on the said affidavit and index Ex. EW4/12 and EW4/13. He has also stated that he signed on blank papers at the instance of Sh. Hari Parkash Sharma on 29.08.2006. He sent a complaint with the police on 30.08.2006 in this regard and the said complaints were sent by post. The postal receipts of said complaints are Mark A to E. The Petitioner, Sh. Yashpal has not filed any copy of complaint regarding obtaining his signatures by Sh. Hari Parkash on affidavit dated 17.10.2006. The complaint is alleged to have been sent on 30.08.2006 i.e. prior to the affidavit dated 17.10.2006. No copy of complaint dated 30.06.2006 or receipt thereof has been placed on record. Secondly, Sh. Yashpal has filed three copies of complaints, on dated 02.11.2006 addressed to Hon‟ble the Chief Justice, other two complaints are dated nil and addressed to the Police Authorities and the same are Ex. EW4/26 to EW4/28. The said complaints were sent after the enquiry was ordered by the Hon‟ble Court and appears to be an after thought.

The report is submitted accordingly."

5. Proceedings, in the review petition, as well as the contempt petition, were adjourned from time to time, at the request of the applicant petitioner. The respondents including the contesting parties filed their pleadings in reply to the review petition, as well as the averments alleging contempt.

6. It is submitted that the inquiry report submitted by the Registrar should not be accepted, because the Petitioner Yashpal never desired the withdrawal of the petition, recorded by the Court, even before the returnable date, i.e. 18.10.2006. Learned counsel relied on representations and complaints made to various authorities to say that the petitioner was victimized, as also his counsel, and that the official respondents including the Municipal Corporation officials acted in collusion with the contesting parties to defeat their rights. The petitioners have also placed other materials (which were not part of the writ petition) to say that the lands in question have a public character, and the municipal authorities, as well as the revenue administration are bound to maintain the integrity of the said lands, as public thoroughfare.

7. The contesting respondents rely upon the MCD's report, filed in the writ petition, on 17.10.2006, as well as the inquiry report, and submit that the writ petition was withdrawn voluntarily. It is also submitted that similar pleas about the land in question being public land

CM Nos.13579-80/06 in WP(C) No. 11740-41/06 & CCP Nos.1273-74/2006 Page 4 ("rasta") were taken in another writ petition, i.e. WP 4883/2007, as well in a suit, i.e. Gianander v. Sadhu Ram, (Suit No. 380/2008, before the Civil Judge, Delhi). The writ petition was dismissed, and the suit was rejected by order dated 29.05.2009. Copies of those orders have been filed by the contesting parties. It is argued by them that the counsel appearing in the present case, for the petitioners, i.e. Shri Surendra Kumar Sharma, had appeared in the said two cases and that particularly that the plaintiff in the suit was related to him, being his brother. It was urged that in these circumstances, as well as the report and other materials this Court should not entertain the review petition, or the contempt proceeding.

8. This Court has considered the materials on record. The inquiry proceeding, particularly the deposition of the petitioner, would reveal that he had signed various documents, and was conscious that Shri Madan Lal Sharma was to represent him. He clearly admitted having signed the affidavit, which was filed in Court, in support of the application for withdrawal of the writ petition. He never deposed that Shri Madan Lal Sharma was a stranger, or was not instructed by him. Shri Madan Lal Sharma's testimony was also recorded. The petitioner did not elicit anything worthwhile in cross-examination, to suggest that he did not have any instructions in the matter. In fact, Shri Sharma deposed having issued a notice, containing the signatures of the petitioner Yashpal (which too were not denied) at three places. Having regard to these circumstances, this Court is of opinion that the objections to the report are without merit. In this view of the matter, the Court is satisfied that no review of the order recording withdrawal of the writ petition is called for; CM 13579-80/2006 is therefore, liable to fail.

9. In so far as the contempt proceeding is concerned, the Court notes that although the petitioner has filed several documents and affidavits, they pertain to the merits of the matter. It was sought to be alleged that the Court's interim status quo order was violated, which calls for punitive action. On this aspect, what is significant is that having agreed to withdraw the writ petition (and the withdrawal having been held to be valid, the order not requiring any review), the petitioner's grievance for maintaining the contempt proceeding itself does not survive. Furthermore, the dismissal of the subsequent writ petition (in respect of the same cause of action, for which the present petitioner's counsel had represented the other writ petitioner, in 2007), the question of the respondents being in contempt of any order, or direction of this Court, in the disposed of writ petition, does not arise. That apart, the attempt to have the same matter agitated before the civil court (at the instance of yet another litigant,

CM Nos.13579-80/06 in WP(C) No. 11740-41/06 & CCP Nos.1273-74/2006 Page 5 this time related to the present petitioner's counsel, being the latter's brother) reinforces the fact that the petitioner is seeking to have the matter agitated repeatedly before the courts.

10. In civil contempt jurisdiction, the Court has the discretion to, after examining the averments and materials, take action, either suo motu or at the prodding of a party. Yet, the essence of the jurisdiction is the Court's reaching out to the source of violation of its order, or directions, in order to take corrective action, or if necessary punish the offender. The petitioner initiating contempt is not really a litigant, as much as a party highlighting the contravention of the order. If the Court is satisfied, it takes the matter further, and the proceedings then assume a different character, as one between the alleged contemnor and the Court. This exercise of discretionary jurisdiction, though important to reinforce the dignity and sanctity of Courts' order, nevertheless has to be resorted to sparingly, and not in a routine fashion. In the facts of this case, this Court is not persuaded to continue further with the said contempt proceedings.

11. For the above reasons, the applications, CM 13579-80/2006 and contempt petition, CCP Nos. 1273-74/2006 have to fail, and are dismissed.

7th April, 2011                                                (S.RAVINDRA BHAT)

                                                                       JUDGE




CM Nos.13579-80/06 in WP(C) No. 11740-41/06 & CCP Nos.1273-74/2006                          Page 6