Smt. Prem Rani And Ors vs Union Of India And Ors
2013 Latest Caselaw 1598 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


+                   W.P.(C) 2236/2013


SMT. PREM RANI AND ORS             ..... Petitioners
         Through: Mr. Ashok K.Mahapatra, Advocate.


                    versus


UNION OF INDIA AND ORS                ..... Respondents
         Through: Mr. Jatan Singh, Central Govt.Standing
                  Counsel with Mr. Soayib Qureshi, Advocate
                  for the Respondent No.1.
                  Mr. Ajay Verma, Advocate for the
                  Respondent No.2.
                  Mr. Alok Kumar, Advocate for the
                   Respondent Nos.3 and 4.

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL

                             ORDER (ORAL)

: REVA KHETRAPAL, J.

1. The Petitioners in the present writ petition, inter alia, pray as follows:-

"(a) Issue an appropriate writ, order or direction in the nature of mandamus directing the Respondent No.1 to take the custody of the suit land measuring 30929 sq. yds. situated in the revenue estate of Jhandewalan Mandir and further direct that Union of India can cancel the nazul agreement under Clause 12 of the

Agreement and take the land from the custody of DDA as well as Respondents No.3 and 4 to protect the said land and the petitioners should not be disturbed by the Respondent No.3 and 4 from the possession/occupation of their dwelling houses"."

2. Mr. Jatan Singh, Mr. Ajay Verma and Mr. Alok Kumar, Advocates, who appear on advance notice on behalf of the Respondent No.1/Union of India, the Respondent No.2/Delhi Development Authority and the Respondent Nos.3 and 4 accept notice.

3. After hearing the counsel for the parties, this Court is of the view that the present writ petition is an abuse of the process of the Court and has been adopted as a modus operandi for circumventing the orders passed by this Court. It is borne out from the record that in respect of the subject land measuring 30929 sq. yds. situated in the Jhandewalan Revenue Estate of Delhi, bearing Khasra No.40, the Respondent No.3 had filed a suit for perpetual/permanent and mandatory injunction in the year 1982 against the Respondent/DDA. The said suit was decided ex parte on January 22, 1990 by this Court, the DDA having failed to contest the same, by passing a decree of perpetual injunction in favour of the Plaintiffs in the said suit i.e. Badri Bhagat Jhandewalan Temple Society (the Respondent No.3 herein) and against the Respondent No.2 (DDA), thereby restraining the Respondent/DDA from interfering with the possession, management and control of the Plaintiffs, their tenants, licencees and all others and directing the Defendant to withdraw the notice dated

30th November, 1982, thereby cancelling the licence in favour of the Plaintiff in respect of the land.

4. Prior thereto, on 5th October, 1970, a Lease Deed had been entered into between Badri Bhagat Jhandewalan Temple Society (the Respondent No.3) and Shri Keshav Smarak Samiti (the Respondent No.4) for premises measuring 4,620 sq. mtrs. within the Jhandewalan Estate of the lessor. It is the case of the Petitioners that since then the Respondent No.4 has been collecting rent from the Petitioners illegally and forcibly, without any power or authority or any ownership rights vested in it; that the Respondent No.3 vide Award No.117 was held entitled to only 1,048 sq. yds., being the temple area, and had no authority to execute the Lease Deed in favour of the Respondent No.4 and that the area measuring 29,881 sq. yds. is under the direct control of the Government - Union of India and the DDA.

5. It is further the case of the Petitioners that in year 2000 two eviction petitions were filed by the Respondent No.4, one against the Petitioners Nos.1 to 4 and the other against the Petitioners Nos.5 to 8. The first eviction petition was allowed vide judgment dated 8.11.2004 against the Petitioner Nos.1 to 4 and an appeal filed by the Petitioner Nos.1 to 4 against the said judgment was also dismissed vide judgment dated 11.11.2011. Aggrieved therefrom the Petitioner Nos.1 to 4 filed CM(M) Petition No.1495/2011 titled "Prem Rani and Others vs. Keshav Smarak Samiti", which was decided by a learned Single Judge of this Court on 28.8.2012 by passing the following order:-

"Having heard the counsel for the petitioners as also the respondent at length, and seeing that there was no case made out by the petitioners on merits, the petitioners present with her counsel undertake to remove/demolish the entire unauthorized construction consisting of one room in front of the demised premises as also a hall on the first floor of the tenanted premises. The undertakings of the petitioners are accepted. The petitioners to do the needful within six months from today i.e. by the end of February, 2013.

Thus, while maintaining the impugned order, it is directed that in the event of petitioners failing, neglecting or defaulting in their undertakings, eviction order shall become executable forthwith thereof. The petitioners also undertake to continue to pay original rent. In view of the above, the order dated 30.03.2012 of this court whereby the petitioners were directed to pay the user charges @ Rs. 3000/- per month to the landlord (respondent) is recalled and the petitioners shall continue to pay the original rent as it was before to the respondent subject to the adjustments of amount, if any, already paid or deposited by the petitioners at the rate of original rent. It is clarified that the adjustment, if any made by the petitioners, would be at their own calculations and responsibilities.

Petition stands disposed of accordingly."

6. Pursuant to the aforesaid judgment, an execution petition was filed against the Petitioners, the Petitioners having failed to comply with their undertaking dated 28.08.2012 given to this Court. The said execution petition is stated to be pending till date.

7. The Petitioners contend that the statement of the Petitioners recorded by this Court on 28.8.2012 in C.M.(Main) Petition

No.1495/2011 "was given inadvertently without knowing the legal repercussion and implication of the law as the Petitioner is an illiterate lady. (sic.)"; that the Petitioners should not be bound by the said order and that objections to this effect had been filed by the Petitioners in the execution proceedings.

8. In the aforesaid factual scenario, the Petitioners, as noted above, pray for issuance of a writ in the nature of mandamus directing the Respondent No.1/UOI to take custody of the subject land measuring 30,929 sq. yds. situated in the Revenue Estate of Jhandewalan Mandir and direct the Union of India to cancel the Nazul Agreement with the DDA and take custody of the land from the DDA as well as the Respondent Nos.3 and 4 and the Petitioners should not be disturbed by the Respondent Nos.3 and 4 from the possession/occupation of their dwelling houses.

9. From the above, in my view, it is apparent that the present writ petition is not maintainable and has been filed by the Petitioners to somehow or the other thwart the orders passed by this Court and circumvent the execution proceedings filed against them by the Respondent No.4. This is clearly impermissible in law. Even otherwise, the Petitioners are not entitled to any discretionary relief keeping in view the fact that the Petitioners have not complied with the order dated 28.8.2012 passed by this Court, reproduced hereinabove, which order has attained finality. The Petitioners are in fact guilty of violating the undertaking given by them in the presence of their counsel to remove/demolish the entire unauthorized structure and to pay user charges to the Respondent.

10. The writ petition is therefore an abuse of the process of this Court and is accordingly dismissed. The Petitioners shall pay costs of ` 40,000/-, which shall be proportionately paid by the Petitioners to the Respondent Nos.1 to 4.

REVA KHETRAPAL (JUDGE) April 09, 2013 km