T.N. Vohra & Ors. vs Govt. Of Nct Of Delhi & Ors.
2012 Latest Caselaw 4706 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI
                                Date of decision: 9th August, 2012
+                            LPA No.104/2004
%          T.N. VOHRA & ORS.                                ....Appellants
                         Through:       Mr. Ravi Gupta, Sr. Adv. with Mr.
                                        Shajabh Singhwal & Ajay Gulati,
                                        Advs.
                                    Versus
           GOVT. OF NCT OF DELHI & ORS.            ..... Respondents
                        Through: Mr. Rajiv Bansal with Mr. Devvrat
                                 Singh, Adv. for DDA.
                                 Mr. Angad Singh Narula, Adv. for
                                 R-5.
                                  AND
+                            LPA No.106/2004
%          T.N. VOHRA & ORS.                                ....Appellants
                         Through:       Mr. Ravi Gupta, Sr. Adv. with Mr.
                                        Shajabh Singhwal & Ajay Gulati,
                                        Advs.
                                    Versus
    GOVT. OF NCT OF DELHI & ORS.             ..... Respondents
                  Through: Mr. Rajiv Bansal with Mr. Devvrat
                           Singh, Adv. for DDA.
                           Mr. Angad Singh Narula, Adv. for
                           R-5.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. These two Intra-Court appeals impugn the orders dated 18th September, 2003, 26th September, 2003 & 19th January, 2004 in W.P.(C)

No.1283/2003 preferred by the appellants. Notice of the appeals was issued. Both the appeals were dismissed as infructuous on 27 th April, 2004. Applications for re-calling of the said orders and for deciding the appeals on merits are pending consideration. The counsels have been heard.

2. The appellants claim to be the owners vide registered sale deeds dated 9th September, 1994 and 22nd November, 1994 of a built-up property situated on Khasras No.424-425 of village Mahilpalpur,Tehsil Mehrauli, Delhi. It is further the case of the appellants that the said property is situated in the unauthorized colony of Mahipalpur Extension under consideration for regularization. The appellants further claim to have rented out the said property in or about the year 1997 to the respondent M/s Group- 4 Securitas (hereinafter called the tenant).

3. The appellants filed W.P.(C) No. 1283/2003 from which these appeals arise, seeking protection against harassment and demolition of their said property at the hands of the governmental agencies.

4. The respondent DDA in its counter affidavit to the writ petition pleaded that the land on which the property was illegally constructed was acquired under the Land Acquisition Act; though the acquisition was challenged but such challenge was unsuccessful; that the sale deeds in favour of the appellants were during the acquisition proceedings and were thus void ab initio being in contravention of Delhi Land (Restriction on Transfer) Act, 1971; that the possession of the property could not be taken earlier owing to non-availability of the police force; that on 10th February, 2003 when possession was sought to be taken, the tenant scuttled the same

by handing over a dim copy of a stay order in CM.No. 984/2002 in Civil Writ Petition No. 5780/2002 purporting to be with respect to Khasra No.425 instead of 424 (min.) mentioned in the order; that the said stay order was subsequently found to be tampered and not covering the said land.

5. The writ petition was dismissed vide judgment dated 25 th August, 2003,

i) observing that it was not under challenge that the subject land was acquired and the appellants had no right thereto and the entire case of appellants was predicated on the plea that the property was part of an unauthorized colony slated for regularization;

ii) further observing that the construction itself of the said property was in contravention and violation of the order directing maintenance of status quo in CWP.No.4771/1993 titled Common Cause Vs. Union of India in which directions had been issued for framing of policy for regularization;

iii) further observing that even the sale deeds in favour of appellants were in violation of the order in Common Cause supra and that the sale deeds were got registered by making a wrong declaration;

iv) the sale deeds in favour of the appellants as well as the construction of the property were thus held to be contemptuous;

v) holding that the policy of regularization is meant for the residential users in unauthorized occupation and not for people like appellants who had let out the property for commercial use;

vi) holding that the appellants had not even disclosed the complete facts in the writ petition and had not approached the Court with clean hands;

vii) holding that the entire conduct of the appellants including of scuttling the attempt to take possession by showing a fabricated and tampered Court Order disentitled the appellants from any relief;

viii) An enquiry into the registration of the sale deed in favour of the appellant was thus ordered;

ix) The Registrar (Vigilance) was also directed to enquire into and fix the responsibility for fabrication of Court Order.

6. The appellants preferred LPA 643/2003 against the aforesaid judgment dated 25th August, 2003 but which was dismissed on 8th September, 2003.

7. After the writ petition and the appeal were so dismissed, the tenant filed an application pleading that it can have no defence to respondent DDA either demolishing the construction or taking over physical possession thereof and seeking some time to vacate the property. It was also pleaded on behalf of the tenant that the tenant was not responsible for the fabricated/tampered stay order of the Court on the basis of which demolition action had earlier been scuttled. Offer was made to hand over possession of the property to the Land & Building Department, Govt. of NCT of Delhi which in turn could hand over the property to the respondent DDA.

8. The appellants, who were petitioners in the writ petition did not

appear before the Court on 18th September, 2003 when the aforesaid application of the tenant was taken up for hearing. The learned Single Judge vide order dated 18th September, 2003 impugned in these appeals directed that possession of the property be taken over by the concerned authorities and appointed the tenant as the agent of the respondent DDA till it vacated the property. The tenant was also restrained from releasing any payments to the appellants.

9. The possession of the property was so handed over by the tenant to the governmental agencies and is now with the governmental agencies.

10. The application aforesaid of the tenant was again taken up for hearing on 26th September, 2003 when it was informed that the appellants were liable to refund an amount of Rs.42 lacs towards refundable security deposit and Rs.19.25 lacs towards unadjusted advance rent totaling to Rs.61.25 lacs to the tenant. However all counsels including of the appellants gave their no objection for deposit of the said amount by the appellants with the respondent DDA.

11. Vide subsequent dated 19th January, 2004 impugned in these appeals the application aforesaid filed by the tenant was disposed of with a direction for deposit in this Court of the said sum of Rs.61.25 lac and which amount is now lying deposited in this Court. It was reasoned that the respondent DDA was prevented on 10th February, 2003 from taking over possession and demolishing the structure by producing a fabricated Court Order; that no party should be allowed to derive benefit of such conduct; that the purchase by the appellants also was in violation of the Delhi Land

(Restriction on Transfer) Act, 1971 and during the pendency of challenge to the acquisition proceedings; that even the construction was in contravention of the Court Orders in the proceedings then pending; that the appellants had thus reaped illegal benefits from the land and to which they were not entitled.

12. The enquiry ordered by the Single Judge vide order dated 25 th August, 2003 supra found the appellant, Vipin Vohra guilty of fabrication of the Order of the Court; certain observations were also made against the appellant, T.N. Vohra. The appellants disputed the findings of enquiry. The learned Single Judge vide order dated 8th April, 2004 directed the Registrar General of this Court to register an FIR in terms of the enquiry report and directed investigation by the Crime Branch. Action was also directed to be taken against officials concerned for wrongful registration of sale deeds.

13. The present appeals were disposed of as infructuous on 27 th April, 2004 in view of order dated 8th April, 2004 supra of the learned Single Judge finally disposing of the writ petition and with an observation that the appellants could take their remedy against the order dated 8th April, 2004.

14. The appellants preferred LPA 793/2004 against the order dated 8th April, 2004. The same came up for hearing on 17 th August, 2004 when appellants confined the relief therein to clarification that the investigation by Crime Branch as ordered, would not be influenced by the enquiry report of Registrar (Vigilance). Making the said clarification, the said LPA was disposed of on 17th August, 2004.

15. It is thereafter, that applications for revival of these appeals, were filed.

16. The senior counsel for the appellants has argued that the learned Single Judge ought not to have had the possession of the property got delivered from the tenant to the governmental agencies and to the prejudice of the appellants who are the owners vide sale deeds aforesaid and who were in possession through their tenant aforesaid of the said property. It is argued that the appellants, in a writ petition filed by them, could not have been deprived of the possession of their property and which possession admittedly was with them, though the tenant, till then. It is yet further argued that even though the said property is situated over acquired land but since the government is considering regularization, the appellants ought not to be deprived of the benefit thereof. It is also the argument that the learned Single Judge had become functus officio after the dismissal of the writ petition preferred by the appellants on 25th August, 2003 and could not have passed the subsequent orders directing the tenant to deliver the possession of the said property to the governmental agencies or directing the appellants to deposit the amount aforesaid of Rs.61.25 lacs.

17. The counsel for the tenant has not pressed for release of the amount of Rs.61.25 lacs deposited in this Court and has rather sought to justify the action of the tenant of approaching this Court for delivery of possession of the property.

18. As aforesaid, these appeals already stand dismissed on 27 th April, 2004. The question now is only whether they are to be restored.

19. It cannot be lost sight of that the appellants have invoked the discretionary jurisdiction of this Court under Article 226 of the Constitution of India. We are of the opinion that the said discretion is to be not exercised in favour of the appellants for the following reasons:-

(a). it is undisputed that the action on 10th February, 2003 of demolition of the property by the respondent DDA was scuttled/thwarted on the basis of a fabricated and tampered Court Order. Investigation in this regard has been initiated and it is yet to be determined as to whether the appellants have any role in the same. Ordinarily, the appellants as owners of the property would be interested in protecting the same and the possibility of the involvement of the appellants in fabrication/tampering of the Court Order used to thwart such action for demolition cannot be ruled out. If the said Court Order had not been shown on that date, the property would have stood demolished and repossessed;

(b). it is also not in dispute that the land has been acquired and the appellants or their predecessor from whom the appellants claim to have derived title have no right or claim thereto. The said land rightfully belongs to the respondent DDA who is already in possession thereof;

(c). the appellants now have been out of possession of the property for the last over eight years. The photographs available on record also show that the property has been largely demolished;

(d). it is also borne out from the record that the said land is required by the respondent DDA for public purposes;

(e). the policies of regularization of unauthorized colonies are beneficial policies for the protection of occupants against dispossession depriving them of the place of their residence. The said policies are not meant for affluent persons like the appellants who are not occupants over such land and attempt to profiteer from such polices;

(f). there is no material on record to show that the subject property is part of the unauthorized colony under regularization. No site plan with boundaries of the unauthorized colony showing the subject property to be part thereof has been shown;

(g). once the appellants are found to have knowingly indulged in acquisition of acquired land, manipulating registered sale deeds thereof, construction in violation of Court Orders and are suspected of forgery/fabrication of Court Order, they have no right, title or interest in the property which can be protected by this Court.

(h) the claim of the appellants to benefit of regularization has already been negatived vide order dated 25th August, 2003 supra of the learned Single Judge and intra court appeal whereagainst has already been dismissed.

(i) the Regulations for Regularization of Unauthorized Colonies in

Delhi notified on 24th March, 2008 in Clauses 3.4 and 3.6 thereof also prohibit regularization in respect of buildings used for non-residential purposes and inhabited by affluent section of public.

20. We are further of the opinion that the appellants have no right to the release of the amount of Rs.61.25 lac also as the appellants, in the facts and circumstances aforesaid, were not entitled thereto in the first place.

21. We are therefore of the opinion that no case for restoration of the appeals as sought is made out. In any case, the discussion aforesaid has dealt with the merits of the appeals and the appellants have not been found entitled to any relief. The applications for restoration as also the appeals are accordingly dismissed. DDA, in whom the land on acquisition was to vest, is found to be the rightful claimant of the earnings from the said land. The appellants, though not entitled to, have already reaped enough benefits of such earnings. They are thus not found entitled to the amount lying deposited in this Court. The amount of Rs. 61.25 lacs lying deposited together with interest accrued thereon be accordingly released in favour of the respondent DDA.

No costs.

RAJIV SAHAI ENDLAW, J

ACTING CHIEF JUSTICE

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