North Delhi Municipal ... vs Parmod Kumar And Anr.
2013 Latest Caselaw 5580 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Order delivered on: December 02, 2013

+     CM(M) 1102/2012 & C.M. No.17435/2012 (for stay)
      NORTH DELHI MUNICIPAL CORPORATION          ..... Petitioner
                   Through  Mr.Sudhir Nandrajog, Sr.Adv. with
                            Ms.Mini Pushkarna, Adv.

                           versus

      PARMOD KUMAR AND ANR                                ..... Respondents
                 Through  None.

+     CM(M) 1103/2012 & C.M. No.17440/2012 (for stay)
      NORTH DELHI MUNICIPAL CORPORATION         ..... Petitioner
                   Through  Mr.Sudhir Nandrajog, Sr.Adv. with
                            Ms.Mini Pushkarna, Adv.

                           versus

      PARMOD KUMAR AND ANR             ..... Respondents
                   Through  None.
      CORAM:
      HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (ORAL)

1. By way of the first petition, being CM(M) No.1102/2012, under Article 227 of the Constitution of India, the petitioner has assailed order dated 12th September, 2012, whereby the contempt proceedings were initiated against the petitioner.

2. While as by way of the second petition, being CM(M) No.1103/2012 under Article 227 of the Constitution of India, the petitioner has assailed another order dated 12th September, 2012, whereby the appeal filed by the respondents against order dated 26th May 2011, dismissing the application of

the respondents under Order 39 Rule 1 & 2 CPC passed by the Learned Civil Judge, was allowed.

3. Brief facts for the purpose of adjudication of the present petitions are that during a routine inspection and survey conducted by Land & Estate Department of the petitioner herein to ascertain status of various properties, it was noticed that property bearing no. 204, MCD Market, Saraswati Marg, Karol Bagh, Delhi (hereinafter referred to as "the suit property") was in occupation of one Sai & Co, firm of the respondents herein. Upon enquiry, the respondents were asked to produce relevant documents whereupon they provided a letter dated 17th April 2007 issued under the signatures of one K.Srivatsan, Administrative Officer.

4. It is averred by the petitioner that when an attempt was made to trace the relevant records of the auction proceedings, it was noticed that the said letter was issued without completion of the auction process on his own and without the approval of the Commissioner, MCD and subsequent approval of the Corporation.

5. Thereafter on seeking clarifications regarding the same and by way of further investigation, it was found out that the respondents had taken the said possession illegally and the respondents were accordingly declared as unauthorized/illegal occupants of the suit property.

6. Consequently the respondents filed a suit for permanent and mandatory injunction against the petitioner restraining the petitioner from dispossessing the respondents from the suit property and for direction to the petitioner to issue receipt of the licence fee for the amount deposited by the respondents in respect of the suit property.

7. The respondents along with the said suit also filed an application for interim protection under Order 39 Rule 1 & 2 CPC. However, the said

application was rejected by order dated 26th May, 2011 on the ground that the respondents had failed to show that tenders were floated in the relevant year 2004-05 and to show that they participated in the same.

8. The respondents filed an appeal against the said order. Reversing the order of the learned Trial Court, the Appellate Court observed that while it was not disputed that the respondents in possession of the suit property under the document/letter dated 17th April 2007 issued by the administrative officer and that they had continuously been paying the licence fee which was being received by the petitioner regularly. However, though the learned Trial Court had mentioned that the petitioner had contended that no tenders were floated in the relevant years 2004-05, in the written statements filed by the petitioner, it was mentioned that they are not in a position to say that whether any tender was floated or not in the relevant year 2004-05. It was further observed by the learned Appellate Court that the written statement was also silent as to whether the respondents had participated or not or was there any bid or not.

9. It was opined by the learned Appellate Court that since the petitioner had not disputed the fact that the said letter dated 17 th April 2007 bore the signatures of the administrative officer, evidence in this regard was yet to be led and allegations were yet to be proved, meanwhile, prima facie the said letter dated 17th April 2007 prima facie created rights in favour of the respondents and that balance of convenience also lied in favour of the respondents unless it was proved in disciplinary proceedings that the said letter dated 17th April 2007 was procured by concealing the facts with connivance of the officer of the petitioner. The respondents would suffer irreparable loss and injury if the petitioner was disposed from the suit property without following due process of law. Accordingly, the relief

sought under Order 39 Rule 1 and 2 CPC as sought was granted to the respondents in appeal vide the order dated 12th September 2012.

10. It is pertinent to mention that on the first date of hearing of the appeal, the petitioner was directed not to dispossess the respondents from the suit property, however, since the stay was not extended on the next date of hearing, the possession of the suit property was taken by the petitioner from the respondents during the pendency of the appeal. Aggrieved thereby, the respondents filed a contempt application against the petitioner in the said appeal.

11. Deciding the contempt application vide a separate order dated 12th September 2012, the learned Appellate Court observed that the conduct of the petitioner was evident whereby on 8th June 2011 i.e. on the last day before summer vacation, stay was not extended and the Court was to re-open on 2nd July 2011, however, meanwhile the petitioner took possession. It was opined that the rule of lis pendis applies and also that no party should make to suffer loss because of the fault of the court and the other party should also not be allowed to be benefited accordingly. Accordingly, the contempt application of the respondents was also allowed against the petitioner.

12. Aggrieved by both the impugned orders dated 12 th September 2012, the petitioner has filed the present petitions.

13. Upon service, no one appeared on behalf of respondents. Even reply was not filed by the respondents. I have heard the learned Senior counsel appearing on behalf of the petitioner and have also gone through the pleadings and documents. It is not denied by the petitioner that the trial in the matter is yet to be conducted and both parties have to lead their evidence in support of their rival submissions. At this stage, the court has to take the prima facie view of the matter.

14. On perusal of the record, it is difficult to hold that a contempt had been committed by the department. The interim order that was granted by the court in MCA No.13/2011 was granted on 4th June, 2011 only till the next date of hearing i.e. 8th June, 2011. On the said date, the matter was adjourned to 8th August, 2011. However, the stay was not extended by the court so the petitioner herein ought not to have been directed to restore the possession of the suit property to the respondent. Due process of law had been followed by the department in taking back the possession of the suit property. In the case of Arjan Singh vs. Punit Ahluwalia & Ors., (2008) 8 SCC 348, the Hon'ble Supreme Court held that in case an order of injunction continued from time to time and subsequently the interim order was neither extended nor vacated, then in that case no order of injunction can be said to be operative.

15. In view thereof, the learned Trial Court ought to have appreciated that an interim order passed for a limited period would not continue automatically. If the court has passed interim order for a limited period, unless that order is extended, it would not continue automatically. Thus, the order of trial court is set aside.

16. With regard to direction issued by the learned trial court to hand over the possession of the suit property, it is admitted position that when the Municipal Corporation had issued show cause notice to the respondent and called upon him to furnish documents, the said action was in consonance with following the due process of law. The respondent was duly called upon to submit documents in support of his submissions. The documents submitted by the respondent were duly considered by the department. Subsequently, the respondent was also issued show cause notice and called upon to give reply to the questionnaire issued by the department. However,

the respondent did not reply to the said show cause notice and did not co- operate with the department in carrying out the aforesaid investigation regarding the entitlement of the respondent to suit property. After a thorough investigation, the department came to a considerable decision that the purported letter dated 17th April, 2007 issued by the Administrative Officer was without any authority. Thus, the department ultimately declared the said letter dated 17th April, 2007, which was relied upon by the respondent to justify his possession, was declared as cancelled/null and void. The respondent was directed to hand over the peaceful and vacant possession to the department. As the respondent failed to comply the requirement of letter dated 17th April, 2007, the department took repossession of the suit property on 2nd July, 2011 with the help of police aid.

17. In view of the above mentioned facts and settled law in this regard, I am of the considered view that the impugned orders suffer from infirmity on this aspect also. Accordingly the order is set aside.

18. The petitions and pending applications are disposed of accordingly.

(MANMOHAN SINGH) JUDGE DECEMBER 02, 2013