Delhi High Court

Delhi Urban Shelter Improvement ... vs Noordin on 20 May, 2014

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      Decided on     : 20.05.2014

+     CM(M) 299/2012 and CM No. 4466/2012
+     CM(M) 607/2012 and CM No.9354/2012
+     CM(M) 595/2012 and CM No.9132/2012
+     CM(M) 598/2012 and CM No.9189/2012
+     CM(M) 599/2012 and CM No.9200/2012

      DELHI URBAN SHELTER
      IMPROVEMENT BOARD                    ..... Petitioner
          Through: Mr. Parvinder Chauhan, Advocate

             Versus

      NOORDIN                             ..... Respondent
      SHARIF                              ..... Respondent
      PREHLAD                             ..... Respondent
      CHHOTTEY LAL                        ..... Respondent
      REVAR                               ..... Respondent
          Through: Mr. M.Naushad Siddiqui, Mr. Shamsher Ali
                   and Mr. Aditya Gaur, Advocates

CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI

NAJMI WAZIRI, J. (Oral)

1. On 13.5.2008, the petitioner had sealed the respective properties

of the respondents in the above noted five petitions. They had filed

different suits in which interim orders were passed under Order

XXXIX Rule 1 & 2 CPC, holding that the balance of convenience lay

in favour of the respective plaintiffs, therefore the said seal were

directed to be removed. The petitioners' appeals against the

interlocutory orders were dismissed, hence these petitions. Since the

crucial dates and events are similar, these petitions are disposed off by

a common order. The plot numbers of the different respondents

(plaintiffs) and the quantum of monies paid by them on different dates

would vary but the facts and events of CM(M) No. 299 of 2012 are

taken as an indicative template.

2. This petition challenges an interim order dated 05.04.2011 in

MCA No.7/2010, which dismissed the petitioner's appeal against an

order of the Trial Court of 27.1.2009 passed under Order XXXIX Rule

1 and 2 CPC in a CS No.29/08.

3. The respondent was uprooted in the year 1986 from Pushp

Vihar. Under the Rehabilitation Scheme of the Slum & JJ Department,

Delhi Municipal Corporation, he was allotted Plot No. 6F, Madanpur

Khadar, Phase-III, New Delhi through a draw of lots was conducted

by the petitioner. An amount of Rs.7,000/- was deposited by the

respondent against a receipt dated 13.10.2005. A provisional

certificate was issued on 05.07.2006 by the petitioner. Later in 2008

one Mr. Hazrat Hussain filed a suit, bearing No. 300/2008, against one

Mr. Nanak Chand who was an officer of the Slum and JJ Wing. In the

WS the petitioner/Municipal Corporation had taken the stand that the

plaintiff Hazrat Hussain has nothing to do with the land allotted to the

Slum and JJ Department (Slum Urban Rehabilitation), MCD; that the

MCD carved out six additional plots bearing Nos. 1A, 2B, 3C, 4D, 5E

and 6F each measuring 18 sq. yrds. and the respondent had got the

plot No. 6F in a draw of lots.

4. It is stated that thereafter, without any provocation, rhyme or

reason and without giving any show cause notice to the respondent, on

13.05.2008 the petitioner Corporation sealed the property of the

respondent. This action was challenged before the Appellate Tribunal

MCD which dismissed the appeal on the ground that the appropriate

remedy lay elsewhere. The respondent then filed the suit bearing No.

29/2008 (New No. Suit No.500/2010) seeking a mandatory and

permanent injunction against the petitioner for removal of the seal on

the suit property i.e. to de-seal it. The learned Trial Court, vide an

order dated 27.01.2009, directed the petitioners to remove the seal

from the suit property and restrained them from causing any inference

in the plaintiffs' possession of it. The order was not complied with.

The petitioner went in appeal wherein the order of the Trial Court was

stayed. However, on 24.09.2010, the stay order was vacated for non-

prosecution; ultimately the appeal was dismissed by the impugned

order.

5. Mr. M.Naushad Siddiqui, the learned counsel for the respondent

contends that despite the order of the Trial Court and of the Appellate

Court directing the removal of the seal, the petitioners have not de-

sealed the property. However, this Court notices that on 06.07.2012,

status quo of the impugned order had been directed. The learned

counsel further submits that for the non-compliance, flouting and

disobeying of the Trial Court's order of 27.01.2009 - directing the de-

sealing of the suit properties, an application under Order XXXIX

Rules 2A CPC was moved for initiation of appropriate action against

the petitioner (defendant). In its reply to the aforesaid application, the

Deputy Director of the petitioner stated that the identity of the plaintiff

had not been established therefore the property could not be de-sealed:

"It is submitted that the answering respondent is/was unable to comply with the order passed by the Hon'ble Court in as much as identity of the

plaintiff/applicant is uncertain. After passing of the order, whenever a person approached them for removal of the seal from the property (house No. 6F, Madanpur Khadar, Phase-III, New Delhi) the answering respondent always requested that person to produce Noordin (plaintiff/applicant) along with some proof to establish his identity as Noordin (plaintiff). But the said bonafide request of the answering respondent was never followed. Thus, the answering respondent is/was unable to comply with the order passed by the Hon'ble Court despite its best efforts."

6. It is seen from the Trial Court proceedings of 31.05.2011 that

the proof of identity of the plaintiff (respondent herein) was duly given

to the counsel for the Corporation as well as to its official Shri Sanjay

LDC in the Court. The petitioner was directed to comply with the

order dated 27.01.2009 and remove the seal of the premises since the

identity of the plaintiff had been established in the day's proceedings.

The suit was next listed for compliance on 08.06.2011. But despite the

clarity apropos identity of the plaintiff and specific directions by the

Court, there was no compliance. Therefore, the stand taken by the

Corporation about there being a doubt about the identity of the

plaintiff is totally false, misplaced and a misuse of the process of the

Court.

7. Later in the petitioners' appeal, the impugned order was stayed

by the Appellate Court on 04.06.2009. However, the same was

vacated on 24.09.2010. But, from that date till the stay by this Court

on 06.07.2012 i.e. for almost 22 months, the respondent-Corporation

did not comply with the Court's directions. Before this Court, the

petitioner/Corporation has stated that there was a conspiracy among

the officers of the respondent-Corporation who had allotted the plots

illegally i.e. without approval from the competent authority, inasmuch

as the land which was allotted in the draw of lots was meant for the

site-office of the Corporation; that cases have been booked against the

officers by the Anti Corruption Branch of the CBI and the cases were

under investigation. The employees of the Corporation who were

suspected and charged were (i) Sher Singh, Asstt. Engineer; (ii) Shri

Nayak Chand, J.E.; (iii) Atul, UDC; (iv) Sh. Phillip Toppo, Dy.

Director and (v) Sh. S.N.S. Sindhu, Director. It will be seen that

virtually the entire department of the Slum and JJ Wing including the

Director had been accused of wrongdoing. Interestingly, the learned

counsel for the respondent submits, that the entire case against Nanak

Chand has fallen through inasmuch as the inquiring authority itself

concluded on 27.06.2012 that the article of charge framed against

Nanak Chand, JE was not proved.

8. Both, the Trial Court as well as Appellate Court were of the

view that in the absence of any document to justify the legality of the

sealing of the premises under the relevant provisions of the MCD Act

or any other provision of law, the action of the petitioner was prima

facie not justifiable; that balance of convenience lay in favour of the

plaintiff (respondent herein) hence, in the interim, the MCD seal

needed to be removed from the suit property.

9. The learned counsel for the respondent submits that the

petitioner is in contempt because despite the Court having directed

them to de-seal the premises, they have not done so on the pretext that

the identity of the plaintiffs could not be ascertained. He submits that

this flouting of the Court amounted to contempt of the Court, and

because of the pendency of this petition, the proceedings before the

Trial Court have not progressed. The Appellate Court had reasoned:-

"It is settled law that the order of the Ld. Trial Court passed under Order 39 Rule 1 & 2 CPC could be set aside only if it is perverse or against the settled principles of law. In the present case,

the respondent was allotted the plot in draw of lots and he has deposited the allotment money and thereafter constructed two rooms on the ground floor and a latrine on the first floor and it is not disputed that before the sealing of the plot, the appellant has not issued any notice to the respondent and the appellant could not produce any sealing order on record and it is a admitted fact that till date no action for cancellation of the allotment of the plot or for the forfeiture of the money has been initiated by the appellants. Although, the appellant is claiming that the respondent has got plot in connivance with the officials of the appellant but the respondent cannot be allowed to suffer due to illegal and wrongful acts of the officials of the appellant and moreover, the respondent after allotment has constructed the house at the site. The appellant have not been able to show any documents to justify the legality of the sealing of the premises. As per respondent, his household goods are still lying there. Therefore, prima facie case is in favour of the respondent and the balance of convenience is also in favour of the respondent and the respondent shall suffer irreparable loss and injury if the interim order is not granted in his favour. Therefore, I do not find any illegality in the order passed by the Ld. Trial Court. Accordingly, the present appeal is dismissed."

10. The learned counsel for the petitioner submits that the Trial

Court, on 27.10.2009, had erred in directing de-sealing of the premises

and that status quo was to be maintained till the final adjudication of

the suit. However, he has not been able to show how the balance of

convenience lay in favour of the Corporation which had proceeded to

seal the suit premises without following due procedure. Arbitrariness

is not tenable in law. Admittedly, no notice has been issued to the

respondent-allottee who had built up habitational accommodation on

the lands allotted to them by the Corporation itself, and that too

against payment. Therefore, the sealing of the suit property would be

ex facie illegal and wrongful. It is also an undisputed fact that the

petitioner/defendant was not in possession of the suit premises. It is

not as if the plaintiff had encroached upon the respective plots of land

which were allotted to them through the draw of lots. If there was any

doubt with respect to the allotment of the plots through the draw of

lots, and also about the payments, the Corporation would be well

within its rights to proceed against them but only as per law. An act of

sealing of a property without any provocation, apparent cause or

notice to its owner/occupier would not only be arbitrary, high handed

but would in the interim, be proceeded with any notice on the

presumption that it was illegal. The issue of legality of the sealing is to

be adjudicated upon by the Trial Court, but the balance of convenience

would obviously lie in favour of the plaintiff - the possessor of the suit

property. Therefore, the Trial Court as well as Appellate Court were

right in concluding that balance of convenience lay in favour of the

plaintiff.

11. The learned counsel for the petitioner refers to para 5 of a

judgment of the Supreme Court in Kishore Kumar Khaitan & Anr v.

Praveen Kumar Singh, (2006) Vol.3 SCC 312, which reads inter-alia:

"unless a clear prima facie finding that the plaintiff was in possession

on those dates is entered, an order for interim mandatory injunction

could not have been passed and any such order passed would be one

without jurisdiction." The aforesaid judgment would not be

applicable to the facts of this case inasmuch as it is not in doubt that

the plaintiff were in possession of the suit property/plot of land which

was given in draw of lots. Indeed, the Corporation itself has admitted

that the lands were allotted to the respondents against payments in the

draw of lots. In the circumstances, the Trial Court had rightly passed

the order for de-sealing, on the basis of the record available. This

Court finds no merit in the petition to interfere with the order of the

Appellate Court.

12. This Court, on 29.04.2014, had passed the following order:

"Learned counsel for the petitioner states that he would intimate the Court about the steps taken by the department and the progress in the CBI case. He also states upon instructions, that the respondents would be duly compensated for the plots booked by them since the land concerned cannot be allotted to them for residential purposes, at the said rate, because in 1997 itself the said lands were marked for institutional purposes; no allotment can be made in contravention of the layout plan. He seeks time to file an affidavit of petitioner's Director on record in this regard along with the approved layout plan. Learned counsel submits that the land user as prescribed, in the Master Plan, shall be referred to in the affidavit. He submits that the respondents were removed from the premises concerned but the draw of lots towards rehabilitation was fictitious. Whereas, per contra, it is stated that the respondents were allotted the suit premises as rehabilitation plots.