Ashok Kumar Gupta vs Govt. Of Nct Of Delhi & Anr
2013 Latest Caselaw 5357 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                             Date of Decision: 21.11.2013
+       W.P.(C) 7621/2005

        JAI KARAN                                      ..... Petitioner
                                Through:Mr.S.N.Gupta with Mr.S.S.Shukla,
                                Advocates
                                versus
        GOVT. OF NCT OF DELHI & ANR                    ..... Respondents
                        Through:Mr.Prabhat Kumar with Ms.Prerna
                        Kumari and Ms.Poonam Kumari, Advocates.
+       W.P.(C) 7627/2005

        VINOD KUMAR                                    ..... Petitioner
                                Through: Mr.S.N.Gupta with Mr.S.S.Shukla,
                                Advocates
                                versus

        GOVT. OF NCT OF DELHI & ANR                    ..... Respondents

                        Through: Mr.Prabhat Kumar with Ms.Prerna
                        Kumari and Ms.Poonam Kumari, Advocates.
+       W.P.(C) 7635/2005

        ASHOK KUMAR GUPTA                              ..... Petitioner
                                Through: Mr.S.N.Gupta with Mr.S.S.Shukla,
                                Advocates
                                versus

        NCVT. OF NCT OF DELHI & ANR                    ..... Respondents

                                Through: Mr.Prabhat Kumar with Ms.Prerna
                                Kumari and Ms.Poonam Kumari, Advocates.
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN




W.P.(C) No. 7621/2005 & 2 connected matters                           Page 1 of 6
                                      JUDGMENT

V.K.JAIN, J. (ORAL)

WP(C) No.1353/2012 was filed by Kavinder Kaushik and two

others, seeking removal of certain alleged unauthorized occupants from

the premises of Nehru Memorial Middle School, Mandoli Road, Delhi.

Only the Lt.Governor of Delhi, Secretary, Delhi Administration,

Director of Education, Deputy Director of Education and

Administrator/Authorized Officer of Nehru Memorial Co-Ed. Middle

School were impleaded as parties to the writ petition. The alleged

encroachers were not impleaded in the aforesaid writ petition filed by

Kavinder Kaushik and two others. The said writ petition came to be

decided on 12.1.2004. The following order was passed by the Court in

the aforesaid writ petition:-

"Learned counsel for the respondent states that the respondent would examine the matter and in case the property vests in the respondent, they shall initiate necessary action in accordance with law for removal of the encroachers within two months from today. In case, it is the petitioner who is to initiate action for removal of encroachers based on ownership of the land, then the respondent would take necessary steps to support the petitioner for removal of such unauthorized occupants."

2. Pursuant to the aforesaid order of this Court, separate show cause

notices dated 3.8.2004 were issued to the petitioners. The notices are

identical and read as under:-

" Whereas, Nehru Memorial Co-Educational Middle School, Mandoli Road, Shahdara, Delhi - 110093 was taken over by the Directorate of Education on 07.04.1984.

Whereas, the Hon'ble High Court has passed orders dated 12-01-2004 in WP(C) No:1353/2002 directing for removal of encroachments within two months from the date of order.

Whereas, you are hereby directed to show cause why legal action both civil and criminal cannot be initiated against you for non-compliance of the order of the Hon'ble High Court dated 12-01-2004. The reply to show cause should reach the undersigned within 15 days of receipt of this notice."

3. The petitioners responded to the aforesaid show cause notice on

different dates. Vide impugned order dated 13.4.2005, Deputy Director of

Education (District - North East) directed as under:-

" Show cause notices in pursuance of the Hon'ble High Court dated 12-01-2004 in the matter of Kavinder Kaushik vs DE & ors. case were issued to the following unauthorized occupants of Nehru Memorial Middle School property and there was found nothing substantial in their replies.

The following unauthorized occupants of the NMM School, Mandoli Road are hereby directed to vacate the premises respectively occupied by them latest by 20-04- 2005 failing which legal action as deemed fit shall be taken to comply with the orders of Hon'ble H.C."

Being aggrieved from the aforesaid order passed by the Deputy

Director of Education, the petitioners are before this Court seeking the

following reliefs:-

"a) Issue a Writ of Certiorary/Mandamus/Order quashing the order dated 13.04.2005 whereby eviction

order has been passed against the Petitioner by the Respondent ;

b) Issue a Writ of Mandamus staying the operation of the order dated 13.04.2005 during the pendency of Writ Petition ;"

4. It appears from the above narrated facts that according to the

respondents, the petitioners have encroached upon the property of Nehru

Memorial Middle School and are unauthorisedly occupying the same.

However, in the show cause notice dated 3.8.2004, there is absolutely no

averment that the petitioners were in an authorized occupation of the property

belonging to the aforesaid school. The show cause notice only refers to the

order passed by this Court on 12.1.2004 in WP(C) No.1353/2002 and requires

the noticee to show cause why legal action be not initiated for non-

compliance of the order of this Court dated 12.1.2004. I fail to appreciate

how the respondents could have sought to take action against the petitioners

for non-compliance of the order of this Court dated 12.1.2004 when neither

they were party to the WP(C) No.1352/2002 nor had this Court given any

direction to them in the order dated 12.1.2004.

5. In their reply, the petitioners claimed to be old occupants of the

premises occupied by them and also enclosed certain documents with their

respective reply. However, there is absolutely no reference either to the reply

or to the documents submitted by the petitioners along with their reply, in the

impugned order dated 13.4.2005. It is, thus, evident that the officer who

passed the aforesaid order did not take the reply submitted by the petitioner

and the documents annexed to the reply into consideration, before passing the

impugned order. The impugned order does not disclose as to what was the

basis of Deputy Director of Education concluding that the occupation of the

petitioner was unauthorized. In the Additional Affidavit filed by the

respondents, it is stated that on 20.6.1972, Narayan Sharma, Ram Narayan

Sharma, Ram Mehar Sharma, Ram Chander Sharma and Daya Nand Sharam

each donated 400 sq. yards to the Nehal Educational Welfare Society to run a

school in the name and style of Nehru Memorial Co-Ed. Middle School and

the petitioners had encroached 1/3rd of the school land in connivance with the

donors of the land and their heirs, but, no such averment is made in the

impugned order dated 13.4.2005 passed by the Deputy Director of Education.

Along with the Additional Affidavit, the respondents have placed on record

certain documents, such as affidavit of the land owner, including the affidavit

of the land owners but neither these documents were made available to the

petitioners nor were they given an opportunity to place their case with respect

to the said document, before the Deputy Director of Education. In fact, there

is no reference at all to any of these documents in the impugned order dated

13.4.2005.

6. For the reasons stated hereinabove, the impugned order dated

13.4.2005 cannot be sustained and is, hereby set aside. The respondents are

directed to pass an appropriate speaking order after giving an opportunity of

hearing to the petitioners and considering the replies which they had

submitted earlier as well as the averments made by them in the writ petitions.

The documents filed by the petitioners with the writ petition shall also be

considered by the Deputy Director of Education while passing a fresh order in

terms of this direction. Of course, he will also take into consideration the

documents which the respondents have filed along with the counter affidavit.

For the purpose of personal hearing, the petitioners shall appear before the

Deputy Director of Education at 11.00 AM on 16.12.2013 in his Office in B

Block, Yamuna Vihar, Delhi. A fresh order, in terms of this direction shall be

passed by him within eight weeks of hearing the petitioners. If the petitioners

are aggrieved from the fresh order which the respondent shall pass in

compliance with this direction, it shall be open to them to avail such remedy

as may be open to them in law.

The petitions stand disposed of. No order as to costs.

NOVEMBER 21, 2013                                                V.K. JAIN, J.
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