B.P. Aggarwal vs Uoi & Ors.
2012 Latest Caselaw 1106 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of decision: 17th February, 2012

+                               LPA No. 103/2012

%          RAM CHANDER AGGARWAL                      ....Appellant
                      Through: Ms. Rekha Aggarwal with Mr. Sanjay
                              Aggarwal, Advs.

                                      Versus
           UOI & ORS.                                        ..... Respondents
                              Through: Mr. D.S. Mehandru, Sr. Govt. Counsel
                                       for R-1&2.
                                       Ms. Manjira Dasgupta proxy for Ms.
                                       Shyel Trehan, Adv. for MCD.
                                       Mr. Seeraj Bagga, Adv. for R-4 to 7.

                                       AND

+                                LPA No. 104/2012

%          B.P. AGGARWAL                                ....Appellant
                       Through: Appellant in person with Mr. Rajinder
                                Singh, Adv.

                                      Versus
           UOI & ORS.                                        ..... Respondents
                              Through: Mr. D.S. Mehandru, Sr. Govt. Counsel
                                       for R-1&2.
                                       Ms. Manjira Dasgupta proxy for Ms.
                                       Shyel Trehan, Adv. for MCD.
                                       Mr. Seeraj Bagga, Adv. for R-4 to 7.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW




    LPA No.s 103 & 104/2012                                            Page 1 of 20
                                   JUDGMENT

RAJIV SAHAI ENDLAW, J.

1. These Intra-Court Appeals are preferred impugning the common

order dated 19th January, 2012 of the Learned Single Judge dismissing

W.P.(C) No. 8065/2011 and W.P.(C) No. 8036/2011 with costs of

`50,000/- each, for the reason of the appellants/writ petitioners having

suppressed/concealed material facts therefrom. The counsel for the private

respondents appeared on caveat and considering the nature of the

controversy, we have with consent heard the parties finally.

2. The writ petitions were filed seeking a direction to the Land &

Development Office (L&DO) and the Municipal Corporation of Delhi

(MCD) to hear and decide the statutory revision petitions dated 27 th July,

2005 and 18th May, 1994 preferred by the appellants/writ petitioners

respectively, under Section 24 of the Displaced Persons (Compensation &

Rehabilitation) Act, 1954.

3. The aforesaid revision petitions were filed by the appellants/writ

petitioners seeking cancellation/setting aside of the sale certificate dated 17 th

October, 1963 and other transfer documents in favour of the predecessor-in-

interest of the private respondents in respect of shop No.114, New Qutub

Road Market, Delhi - 110 006.

4. Shri Bhagwan Dass, father of the appellants/writ petitioners claimed

himself to be allottee w.e.f. 10th May, 1956 of the aforesaid shop paying

rent for the same to the government. Shri Bhagwan Dass filed W.P.(C) No.

438-D/1958 at the Circuit Bench of the Punjab & Haryana High Court at

Delhi seeking transfer of the said shop to himself instead of the same being

sold in a public auction to any other person. The then Settlement

Commissioner, Ministry of Rehabilitation filed counter affidavit in the said

writ petition pleading that Qutub Road Market was constructed by the

Ministry of Rehabilitation and the same formed part of the compensation

pool within the meaning of Section 14 of the Displaced Persons Act and the

said shop was to be transferred on ownership basis to displaced persons

only. It was further pleaded that the said Shri Bhagwan Dass was not a

displaced person and the shop had been allotted to him as a temporary

measure only but could not be transferred/sold to him. The said writ petition

was disposed of vide order dated 21 st September, 1960 with the department

agreeing that if it decided to sell the shop , by auction − whether public or

private or by calling tenders, Shri Bhagwan Dass as occupier of the shop

will also be given equal opportunity to give his bid or tender and the said

bid will be considered on merits along with bids of other bidders/tenderers if

any.

5. An advertisement was issued on 28th December, 1960 in the

newspapers inviting tenders for the sale of the aforesaid shop. The

predecessor in interest of the private respondents submitted his tender and

which being the highest was accepted and part of the price of the shop was

adjusted against the verified claims of the said predecessor of the private

respondents, as per Section 8 of the Displaced Persons Act. Shri Bhagwan

Dass did not participate in the sale proceedings. Sale certificate aforesaid

(impugned in the revision petitions) was issued in favour of the predecessor

of the private respondents and a lease deed and a supplementary lease deed

with respect to the said shop also registered in his favour on 17 th October,

1963 and 28th February, 1967. As per the terms thereof the predecessor of

the private respondents as purchaser became entitled to receive rent from

Shri Bhagwan Dass in occupation of the said shop.

6. Shri Bhagwan Dass, predecessor of the appellants/writ petitioners

died in the year 1962. The predecessor of the private respondents on 26 th

July, 1973 instituted a suit for recovery of possession of the shop against the

legal heirs of Shri Bhagwan Dass including the appellants/writ petitioners

herein. The legal heirs of Shri Bhawan Dass contested the said suit, also

challenging the ownership/title of the predecessor of the private respondents

thereto.

7. The appellant/writ petitioner B.P. Aggarwal filed an application

before the Regional Settlement Commissioner for supply of documents

relating to the tenancy of Shri Bhagwan Dass in respect of the said shop. On

23rd February, 1978 a petition under Section 24 of the Displaced Persons

Act was filed by the appellant/writ petitioner Ram Chander Aggarwal along

with other legal heirs of Shri Bhagwan Dass seeking quashing of the sale

made in favour of the predecessor of the private respondents with

consequent relief of sale afresh in favour of legal representatives of Shri

Bhagwan Dass. It was their case that they came to know about the sale in

favour of the predecessor of the private respondents for the first time on 17 th

February, 1978. This petition was dismissed by the Deputy Chief Settlement

Commissioner on 5th July, 1978 thereby upholding the sale and transfer of

the shop in favour of the predecessor of the private respondents. Aggrieved

therefrom the appellant/writ petitioner Ram Chander Aggarwal filed a

revision petition before the Central Government under Section 33 of the

Displaced Persons Act but which was also dismissed on 25 th November,

1978. The said orders were challenged by the appellant/petitioner Ram

Chander Aggarwal along with other heirs of Shri Bhagwan Dass by filing

C.W.P. No. 396/1979 in this Court. The said writ petition was dismissed on

9th April, 1979. SLP(C) No. 10765/1979 was preferred to the Apex Court

and which was registered as Civil Appeal No. 615/1982. The same was

however dismissed as withdrawn on 13th July, 1990 and as a consequence

thereof the sale made of the shop aforesaid in favour of the predecessor of

private respondents and the orders of the Dy. Chief Settlement

Commissioner and the Central Government and the High Court rejecting

Ram Chander Aggarwal's challenge to the sale made in favour of the

predecessor of the private respondents attained finality.

8. The suit for possession aforesaid filed by the predecessor of the

private respondents against the legal heirs of Sh. Bhagwan Dass was also

decreed in or about the year 1982. It was inter alia held that the predecessor

of the private respondents was the owner of the shop and there was no

relationship of landlord and tenant and thus the civil suit was maintainable.

9. First Appeal, being RFA No. 250/1982 was preferred by the

appellant/writ petitioner Ram Chander Aggarwal to this Court against the

said decree. This Court allowed the said RFA. It was held that, as per the

compromise arrived at in W.P.(C) No. 438-D/1958 (supra) the Department

could sell the property only by way of public auction and not by any other

mode; since the sale in favour of the predecessor of the private respondents

was by inviting tenders, the same was held to be invalid. It was also held

that the property was not an evacuee property and Shri Bhagwan Dass and

after him his heirs were a tenant therein.

10. The predecessor of private respondents appealed to the Supreme

Court and the judgment in which appeal is reported as Hans Raj Banga v.

Ram Chander Aggarwal (2005) 4 SCC 572. The facts stated above have in

fact been reproduced from the said judgment only.

11. The Supreme Court held:-

A. that this Court in the judgement in RFA supra, had erred

in holding that as per orders passed by the High Court in

W.P.(C) No. 438-D/1958 the property could be sold only

by way of public auction and not by another other mode;

the department had the option to sell the property either

by auction, public or private, or by calling the tenders;

B. that the department had sold the shop by inviting tenders;

an advertisement was issued in the newspapers inviting

tenders, in response to which the predecessor of the

private respondents filed his tender which was accepted

being the highest; Shri Bhagwan Dass did not file tender

in response to the advertisement;

C. that this Court had erred in holding the sale of the shop

to the predecessor of private respondents to be bad in

law - the sale was valid; the predecessor of the

respondents had paid the entire sale consideration; the

sale was confirmed in his favour and the sale certificate

was issued; since the property was sold on leasehold

basis, the lease deed and supplementary lease deed

aforesaid were executed and registered and whereunder

the predecessor of the private respondents became the

owner of the shop from the date of confirmation of sale

and issuance of sale certificate;

D. that the issue of ownership stood concluded in the earlier

proceedings instituted by the legal heirs of Shri Bhagwan

Dass, before the Rehabilitation Authorities, the writ

petition in this Court and the appeal to the Supreme

Court;

E. that not only the question of validity of sale but also of

ownership was involved in the said earlier proceedings -

valid sale confirms both title and ownership rights in the

purchaser - after the rejection of the challenge to the sale

up to the Supreme Court, the predecessor of the private

respondents became the owner of the shop;

F. that the shop was an evacuee property and had always

been treated and dealt as one; the legal heirs of Shri

Bhagwan Dass also in the earlier proceedings had not

taken the stand that the shop was not evacuee and had

rather filed the revision petition under Sections 24 & 33

of the Displaced Persons Act by treating the shop to be

an evacuee property;

G. that the validity of the sale in favour of the predecessor

of the private respondents having been decided in the

earlier proceedings and the decision therein having

attained finality up to the Supreme Court, Sh. Ram

Chander Aggarwal could not be permitted to canvass this

issue again in the suit proceedings and was estopped

from challenging the sale to and ownership of the

predecessor of the private respondents.

H. that an allottee of the custodian is not the tenant of the

custodian and hence did not enjoy the protection from

eviction under the Delhi Rent Control Act, 1958

particularly when Shri Bhagwan Dass was not a

displaced person;

I. the contention of Ram Chander Aggarwal that he or Shri

Bhagwan Dass did not have notice or knowledge of the

transfer of the property cannot be accepted;

J. Ram Chander Aggarwal as legal heir of Shri Bhagwan

Dass could not acquire any better rights than Shri

Bhagwan Dass himself - as Shri Bhagwan Dass was not

a tenant, Sh. Ram Chander Aggarwal could also not be

considered as tenant.

Accordingly, the decree for possession in favour of the predecessor of

the private respondents and against the legal heirs of Sh. Bhagwan Dass,

passed by the Trial Court was restored.

12. A perusal of the revision petitions, seeking direction for disposal of

which the writ petitions (against the dismissal whereof these appeals have

been filed) shows:-

a. the same to have been preferred under Section 24 of the

Displaced Persons Act, claiming the relief of cancellation of

sale in favour of predecessor of the private respondents on the

grounds:-

i. of there being nothing on the government record to

support public auction;

ii. of there being no record of deposit of earnest money by

the predecessor of the private respondents;

iii of there being no record of any tender having been

submitted by predecessor of the private respondents;

iv. of there being no record of acceptance of the said tender;

                    v.      of the sale certificate being not registered;


                   vi.     of there being mistakes in the lease deed first registered

and for correction whereof a supplementary lease deed

was necessitated.

13. The Learned Single Judge dismissed the writ petitions with costs

aforesaid holding that the appellants/writ petitioners though only claiming

the relief of direction for disposal of Revision Petitions, had not made

disclosure of all the earlier proceedings aforesaid. It was observed that, the

averments made in the writ petitions concealed more than they disclosed;

there were no clear and definite averments with regard to the earlier

successive proceedings and decisions therein against the appellants/writ

petitioners and the averments in the writ petitioner being vague.

14. The appellant/writ petitioner Mr. B. P. Aggarwal appearing in person

has sought to canvass before us that considering the nature of the relief

claimed in the writ petitions, there was sufficient disclosure. He has further

argued that it is not disputed by the L&DO and MCD that the revision

petitions, direction for disposal whereof was sought in the writ petitions, are

still pending. It is further contended that the appellants/writ petitioners had

nothing to gain from concealment/suppression for practicing which their

writ petitions have been dismissed without issuing directions for disposal of

the revision petitions pending for long.

15. The counsels for L&DO and MCD state that owing to the transfer of

the market where the shop is situated from L&DO to MCD, the revision

petitions could not be disposed of.

16. We have however without entering into the controversy of

suppression/concealment, enquired from Mr. B.P. Aggarwal, Adv. as to

whether in the light of the judgment aforesaid of the Supreme Court, the

revision petitions (for disposal whereof direction is sought) do not amount

to 're-litigation' and as to whether the challenge made in the revision

petitions is not barred on the principles of res judicata and constructive res

judicata.

17. Mr. B.P. Aggarwal contends that the necessity for filing the revision

petitions aforesaid arose when the entire records of the government relating

to the shop in question were produced before this

Court in RFA 250/1982 supra and from which it became clear that the sale

certificate had been obtained by the predecessor of the private respondents

by fraud, manipulation as no public auction was ever held as incorporated in

the said sale certificate and no tender had been submitted. It is further

contended that the question of fraud, manipulation and fabrication of

documents has neither been adjudicated nor decided in any proceedings

even by the Supreme Court till date. It is yet further contended that the

principle of finality of litigation cannot be pressed to the extent of such an

absurdity that it becomes engine of fraud in the hands of dishonest litigants.

Reliance is sought to be placed on the judgment of this Court in RFA

250/1982 but which was set aside by the Supreme Court by contending that

the findings of fraud therein have not been set aside by the Supreme Court.

Mr. B.P. Aggarwal has also argued that the judgment aforesaid of the

Supreme Court is a nullity having been obtained by fraud and

misrepresentation of facts and a suit challenging the said decree has already

been filed and is pending before the Civil Judge. It is also contended that the

question of res judicata and constructive res judicata cannot be decided in a

summary way without detailed examination of pleadings, issues, documents

and judgments of previous and subsequent suits. Reliance is placed on Alka

Gupta v. Narender Kumar Gupta AIR 2011 SC 9 and on Raju Ramsing

Vasave v. Mahesh Deorao Bhivapurkar (2008) 9 SCC 54 and on A.V.

Papayya Sastry v. Government of A.P. AIR 2007 SC 1546.

18. Per contra, the private respondent no. 5 who is also an Advocate

relies on Direct Recruit Class II Engineering Officers' Association v. State

of Maharashtra (1990) 2 SCC 715 on principle of finality of litigation, on

Ramchandra Dagdu Sonavane v. Vithu Hira Mahar (2009) 10 SCC 273

on res judicata, on K.K. Modi v. K. N. Modi (1998) 3 SCC 573 on re-

litigation and on M. Nagabhushana v. State of Karnataka (2011) 3 SCC

408 again on finality of litigation.

19. We have on going through of the judgment aforesaid of the Supreme

Court, between the same parties with respect to the same shop and entailing

the same issue, no hesitation whatsoever in holding the revision petitions,

directions for disposal whereof are sought in the present proceedings, to be a

case of re-litigation, perhaps of the worst kind. The appellants/writ

petitioners in the first round of litigation challenged the transfer of

ownership of the shop by the department in favour of the predecessor of the

private respondents, without any success. Though in the second round of

litigation in which the private respondents were seeking to eject the

appellants/writ petitioners from the property, the appellants/writ petitioners

again challenged the title of the predecessor of the private respondents, and

again without any success. Rather the Supreme Court held that the question

of title and ownership stood settled in the first round itself. This (i.e. the

revision petitions seeking direction for disposal whereof these proceedings

have been filed) is the third round on the same aspect. Even though we are

in these appeals not concerned with the merits of the revision petitions

preferred by the appellants/writ petitioners and direction for disposal

whereof is sought but if were to mechanically issue direction for disposal

thereof, would encourage re-litigation in as much as an order of dismissal of

the revision petitions would lead to a fresh round of litigation before the

hierarchy of Courts.

20. Re-litigation is an abuse of the process of the Court and a party

cannot be permitted to re-litigate the issue which has been tried and decided

earlier against him. Re-litigation has, in K.K. Modi (supra), been held to be

contrary to justice and public policy. The Supreme Court in T. Arindam v.

T.V. Satyapal AIR 1977 SC 2421 and in Liverpool & London S.P. & I

Association Ltd. v. M.V. Sea Success I (2004) 9 SCC 512 has held that

proceedings of which there is no possibility of success and/or which are

deadwood and are doomed should be shot down at the earliest stage and

ought not to be permitted to clog the resources of the Court and at the cost

of other deserving matters requiring the attention of the Courts and should

not be allowed to be used as a device to harass. Similarly in Sardar Estates

v. Atma Ram Properties Pvt. Ltd. (2009) 6 SCC 609 it was held that starting

a second round of litigation on frivolous grounds is a flagrant abuse of the

process of the Court and this process has become widespread and which the

Courts cannot approve of, otherwise no judgment would ever attain finality.

21. A Coordinate Bench of this Court speaking through one of us (Acting

Chief Justice) in A.K. Bhattacharya v. Govt. of NCT of Delhi

MANU/DE/9115/2007 has held that even where re-agitation may or may

not be barred as res judicata but if the same issue is sought to be re-agitated

it also amounts to abuse of the process of the Court and the Court has the

power to stop such proceedings summarily. We are thus not inclined to issue

direction for disposal of revision petitions which are found to be by way of

re-litigation and deem it appropriate to nip such abuse of process of the

Court in the bud, at the threshold only.

22. The reason for the appellants/writ petitioners' endeavour to keep the

challenge to the title of the private respondents to the shop alive is not

difficult to fathom. The appellants/writ petitioners are in possession of the

shop, unauthorizedly for the last nearly half a century. The shop is today a

prime piece of real estate situated in the heart of Delhi. The appellants/writ

petitioners by so keeping the challenge alive intend to perpetuate their said

unauthorized possession of the shop and for eviction wherefrom they have

already suffered a decree.

23. The aforesaid facts would show that the grounds on which the

revision petitions aforesaid (direction for disposal whereof is sought) have

been preferred are the same as which have already been adjudicated up to

the Supreme Court. The appellants/writ petitioners claim to have come to

know of the complete facts upon production of the records in this Court

during the pendency of RFA No. 250/1982 supra. It was for the

appellants/writ petitioners to before the Supreme Court take such plea and to

obtain leave from the Supreme Court to agitate the same. The same has not

been done. The Supreme Court, upsetting the judgment of this Court in RFA

250/1982 has returned a categorical finding as to the title of the private

respondents to the shop. The challenge thereto is now sought to be made by

contending non-availability of records of submission of the tender by the

predecessor of the private respondents and the processing thereof. The non-

availability/disappearance of records from the government record cannot be

a ground for this third round of litigation particularly when the Supreme

Court in the judgement supra has unequivocally held the predecessor of

private respondents to be the owner of the shop property and the sale in his

favour to be valid. The appellants/writ petitioners cannot be permitted to

fight the first round contending the sale without notice to them as bad, the

second round by contending the private respondents to have failed to have

established their title and now the third round by contending that the records

of the tender leading to the title do not exist.

24. Mr. B.P. Aggarwal at one time also faintly suggested that he was not

party in the judgement supra of the Supreme Court. We however find that

he appeared in the Supreme Court. Considering his relationship with Sh.

Ram Chander Aggarwal and their interest being common, such pleas cannot

be allowed.

25. We also concur with the reasons given by the learned Single Judge.

The suppression/concealment has to be seen in the light of over fifty dockets

before each Bench everyday. The reading thereof, before hearing, cannot be

minute. It is the duty of litigants and Advocates to highlight the relevant

aspects so as to be gauged easily; they cannot when confronted with the

charge of suppression/concealment be heard to defend by showing reference

to facts, of concealment of which they are charged, buried deep in the

docket. In the facts of the present case it was incumbent on the

appellants/writ petitioners to highlight as to how their revision petitions

challenging the title of predecessor of private respondents were

maintainable inspite of the judgement supra of the Supreme Court holding

him to be the owner. The same was not done.

26. The appeals as well as the writ petitions are thus found to be a case of

abuse of process of this Court by re-litigation and are hereby dismissed. The

learned Single Judge having already imposed costs, we refrain ourselves

from imposing further costs.

RAJIV SAHAI ENDLAW, J

ACTING CHIEF JUSTICE

FEBRUARY 17, 2012 'pp'