Riazuddin vs Dda & Ors
2015 Latest Caselaw 3419 Del

*                 HIGH COURT OF DELHI AT NEW DELHI

+                                RSA No.226/2008

                                               Decided on : 28th April, 2015

RIAZUDDIN                                                     ..... Appellant

               Through:          Mr.Samrat Nigam, Advocate.


                                Versus

DDA & ORS                                                ..... Respondent

               Through:          Mr.Rajiv Bansal, Advocate.

+                                RSA No.235/2008

KUSUM LATA & ORS                                              ..... Appellant

               Through:          Mr.S.K.Jain and Ms.Garima Jain, Advocates.


                                Versus

DDA & ORS                                                ..... Respondent

               Through:          Mr.Rajiv Bansal, Advocate.


CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J.

1. This order shall dispose of RSA No.226/2008 and RSA

No.235/2008 filed against the judgment and decree dated 18.10.2008

(impugned judgment) passed by the first appellate court in RCA No.

24/2007 and RCA No.27/2007.

2. I have heard Mr.Samrat Nigam, the learned counsel for the

appellant in RSA No.226/2008 and learned counsel for the appellant in

the connected appeal RSA No.235/2008. I have also heard Mr.Rajiv

Bansal, the learned counsel for the respondent/DDA.

3. Before dealing with the submissions of Mr.Samrat Nigam, the

learned counsel for the appellant, it would be pertinent to give a brief

background of the cases.

4. Both the regular second appeals arise out of Civil Suit

No.594/2006. The said suit was filed by one Sh. Manmohan Krishan

against two persons namely Sh.Rajiv Chopra and Sh.Subhash C.Gogia

(defendant Nos.1 and 2 respectively) in which the DDA was also

impleaded as defendant No.3. This suit was instituted on 24.05.1988.

5. Manmohan Krishan had filed a suit for perpetual injunction in

which Riazuddin the present appellant was added as plaintiff no. 2, set up

a case that he was residing in the premises in question namely K-16 and

K-17, Hauz Khas in the capacity of a lawful tenant of defendant Nos.1

and 2 i.e. Sh.Rajiv Chopra and Sh.Subhash C.Gogia respectively who

were threatening to dispossess him. So far as the DDA is concerned, it

was alleged that they were threatening to demolish the structure.

6. DDA, the main contesting respondent, was opposing the prayer of

the appellants/plaintiffs. The case of the DDA was that the suit land is a

part of Khasra No.569/297 which originally belonged to one

Sh.K.K.Chopra, father of Sh. Rajiv Chopra, defendant No.1. The said

land was acquired and the possession of the said land was handed over to

the DDA by the then Delhi Administration on 18.07.1961. Sh.

K.K.Chopra had filed a writ petition in High Court of Delhi challenging

the acquisition. The aforesaid writ petition was dismissed by the Single

Judge. A letters patent appeal was filed by Sh.K.K.Chopra which was

allowed and the notification of the acquisition of the land was quashed,

UOI preferred an SLP before the Supreme Court and during the pendency

of the said matter in Supreme Court, the DDA and Sh.K.K.Chopra

arrived at a settlement. Hon'ble Supreme Court directed that a land

measuring 1,000 square yards be allotted to Sh.K.K.Chopra for

construction of his own house and if done so, he shall give up the

challenge to the validity of the acquisition proceedings.

7. It is the case of the DDA that this land measuring 1,000 square

yards was given to Sh.K.K.Chopra and the same is not disputed in the

instant appeal. So far as the other remaining parcel of land is concerned,

the said land was having the status of acquired land.

8. Mr.Riazuddin filed an application under Order 22 Rule 10 CPC

before the Civil Judge for being impleaded as a party in the suit on the

ground that he is purported to have purchased plot No.K-17 from the

plaintiff/Sh.Manmohan Krishan. This application was allowed by the

learned Trial Judge.

9. A similar application was also filed by Smt. Jasbir Kaur alleging

that she had purchased plot No.K-16, Hauz Khas, New Delhi and,

therefore, sought impleadment as a plaintiff. The said application was,

however, dismissed and this led to the filing of RCA No. 24/2007 by the

said applicant/Smt.Jasbir Kaur. After preferring an appeal, Smt.Jasbir

Kaur who had filed an application for being impleaded as a plaintiff in

the suit, disappeared and three ladies by the names of Smt.Kusum Lata,

Smt.Shalini Goel and Smt. Alka Goel filed a similar application for

impleadment as a plaintiff in the suit on the ground that a registered sale

deed had been executed in their favour on 23.06.2008 by one Sh.Tiger

Singh who is having a power of attorney in his favour from one

Sh.Riazuddin. It may be pertinent to mention that not even a single

document had been placed on record in this regard showing that the

original owner Sh.K.K.Chopra or the subsequent owner DDA transferred

the suit property in favour of any person.

10. It may also be mentioned here that although a compromise was

arrived at between the DDA and Sh.K.K.Chopra before the Supreme

Court, neither Smt. Jasbir Kaur nor Sh.Riazuddin were joined as parties

nor it was brought to the notice of the court before 05.08.1988 i.e. the

date of compromise, that interest has been created in favour of either of

them in respect of the acquired land. Thus the stand of the DDA was that

as the acquisition proceedings had attained finality right up to the

Supreme Court, therefore, any transfer of right, title or interest in any

parcel of land by Sh.K.K.Chopra was a nullity and void ab initio. This

aspect was also dealt with by the first appellate court in Para 27 of the

judgment as under:

"27. In the civil appeal 2024/1970; neither the appellant Ms.Jasbir Kaur nor Mr.Riazuddin etc. joined as parties. The decision rendered on 05.08.1988 covered the 'suit plots'. It rendered the whole bunch of documents above referred a nullity and inoperative in law. Consequently, the sale deeds were invalid being void-ab- initio."

11. Smt. Jasbir Kaur had based her claim upon three sets of general

power of attorney and special power of attorney executed by

Sh.Riazuddin and Sh.Mohammed Arshad in favour of her husband

Sh.Tiger Singh. These GPAs/SPAs in favour of Smt. Jasbir Kaur were

for a parcel of land measuring 400 square yards while as the apex court

had directed for release of the land of only1,000 square yards and if

calculated at the rate of 400 for each of the transactions, it would come to

1200 square yards of land. It may also be pertinent here to reproduce

para 29 of the impugned judgment.

"The GPA very basis of the case of Mr.Riazuddin allegedly executed by Sh.K.K.Chopra in favour of Mirazuddin and Riazuddin was neither referred to or placed on record. No satisfactory explanation was rendered."

12. The application of Smt.Kusum Lata, Smt.Shalini Goel and Smt.

Alka Goel was rejected as they were not impleaded as parties in the trial

court and certainly as they have not been impleaded as parties, either in

the suit or in the first appeal, their second appeal deserves to be dismissed

on this short ground itself that they do not have the locus standi to

challenge the judgment of the first appellate court. Therefore, they have

absolutely no locus to challenge the judgment of the first appellate court

much less raise a substantial question of law.

13. So far as Riazuddin is concerned, the trial court had decreed the

suit of Riazuddin and granted an injunction. The DDA, feeling aggrieved

by the said judgment and decree in favour of Sh.Riazuddin, had preferred

an appeal and the first appellate court by a detailed speaking order had

allowed the appeal of the DDA holding that Riazuddin was not able to

show that it had any right, title or interest in respect of the suit land as

claimed by him. In addition to this, it was observed that the compromise

having been arrived at much earlier than the documents purported to have

been executed in favour of Sh.Riazuddin, therefore, the said subsequent

documents could not be deemed to have created any right, title or interest.

It is on account of passing of the impugned judgment that the appellants

in both the appeals herein were ordered to be evicted.

14. Sh.Riazuddin feeling aggrieved by the said judgment has preferred

the present second appeal contending that the impugned judgment and the

decree passed by the first appellate court raises a substantial question of

law.

15. The only substantial question of law raised by Mr.Samrat Nigam,

the learned counsel for the appellant, before this court, is that the

appellant is in settled possession of the suit property since 1970 and,

therefore, he cannot be dispossessed from the suit property, except in

accordance with due process of law which means that for the recovery of

possession, either the DDA should file a suit for possession or initiate

proceedings under Public Premises Act. The learned counsel for the

appellant has placed reliance on case titled A.P.Jain and Ors. v. Union of

India and Ors; 189 (2012) DLT 789 and Sh. Ramesh Chand v. Suresh

Chand and Anr. in RFA No.358/2000 decided on 09.04.2012. The

learned counsel for the appellant/Riazuddin has also relied upon Rame

Gowda (Dead) by LRs v. M.Varadappa Naidu (Dead) by LRs; (2004) 1

SCC 769.

16. The learned counsel for the respondent/DDA has contested this

claim of the appellant. It has been contended by him that the apex court in

Mahadeo Savlaram Shelke and Ors v. Puna Municipal Corporation and

Anr.; (1995) 3 SCC 33 has observed that it is not necessary to resort to

processes of law afresh for the purpose of retrieval of possession. It has

been contended by him that since the appellant has already been given the

right of hearing including the right of representation by filing the suit not

only before the trial court, but also taken out an appeal before the first

appellate court and the said matters having been decided against him, this

tantamount to due compliance with the due process of law.

17. I have carefully considered the submissions made by the learned

counsel for the appellants and the respondent and I have also gone

through the record. There is no dispute about the fact that so far as the

appellants in RSA No.235/2008 are concerned, these three ladies namely

Smt.Kusum Lata, Smt.Shalini Goel and Smt. Alka Goel who are basing

their claim on the power of attorney and agreement to sell purported to

have been executed by one Sh.Tiger Singh who had GPA in his favour

from Riazuddin. On the basis of these power of attorneys, the said

appellants cannot be protected on the assumption of being in possession

because admittedly the land in question stands acquired and that

acquisition proceedings having been challenged in the competent court

and the same having attained finality right up to the Supreme Court, it is

not open for this court to injunct the lawful owner seeking retrieval of

possession of the premises against the respondent herein. Moreover,

these three ladies i.e. Smt.Kusum Lata, Smt.Shalini Goel and Smt. Alka

Goel were not parties in the court below and, therefore, cannot be

permitted to become parties in the second appeal for the first time to get

their rights adjudicated. For that to be done, they ought to have disclosed

their interest either before the Supreme Court or ought to have been

impleaded as parties in the trial court itself. Hence, on this short ground

alone, their appeal bearing RSA No.235/2008 titled Kusum Lata &

Others vs. DDA is dismissed.

18. So far as the appeal of Riazuddin (RSA No.226/2008) is

concerned, merely because his claim is that he was in possession of the

suit property for the last 45 years, does not insulate him from ejectment.

Before the appellant/Mr.Riazuddin shows that he deserves to be protected

against alleged unlawful action or ejectment or demolition, he must

establish before the court his right to the property which is under his

occupation. The learned first appellate court has already observed that no

such documents of ownership have been placed on record by the

appellant/Sh.Riazuddin and even if these documents are stated to have

been placed on record, these are, at best, documents which are self-

serving in nature and cannot be taken into consideration. Even if for the

sake of arguments, it is assumed that the appellant is in possession, that

possession is of no consequence because the matter had gone up to the

Supreme Court and it was settled and the rights of the

appellant/Sh.Riazuddin flow from the documents after the settlement had

been arrived before the Apex court. If at all on the basis of the documents

the documents he had drawn any right title or interest in the property

before the date of compromise before the Apex court, then they ought to

have been impleaded as parties before the Apex court either of their own

or at the instance of Sh.K.K.Chopra who was the owner of the suit

property. This having not been done, does not permit the

appellant/Sh.Riazuddin to contend now that his possession be protected.

Even if the appellant is deemed to be in possession, it would be in the

capacity of a trespasser and a trespasser cannot be granted injunction

against a lawful owner which admittedly in the instant case happens to be

the UOI through DDA.

19. That being the position, the appellant has already been ordered to

be ejected by the first appellate court. The said order does not suffer from

any illegality, impropriety nor does the present appeal raises any

substantial question of law.

20. So far as the contention of the learned counsel for the appellant is

concerned that he is not opposing dispossession, but this dispossession

must be in accordance with law, is absolutely correct. In accordance with

law or due process of law, does not necessarily mean that the DDA ought

to file a suit for recovery of possession. The very concept of due process

of law is that the appellant must be given a right of hearing and a right of

representation and if the same is done, it is a sufficient compliance with

the due process of law. Reliance in this regard is placed on Maria

Margarida Sequeria Fernandes and Ors. vs. Erasmo Jack de Sequeria

(Dead) through L.Rs. AIR 2012 SC 1727 wherein it has been held by the

Apex Court that:

"81. Due process means an opportunity for the

Defendant to file pleadings including written

statement and documents before the Court of

law. It does not mean the whole

trial. Due process of law is satisfied the moment

rights of the parties are adjudicated by a

competent Court."

21. So far as the judgments relied upon by the appellant is concerned

they are distinguishable from the facts of the case. In A.P Jain's case

(supra) the court has said that possession can be taken by due process of

law. That does not necessarily mean that possession can be taken by

filing suit for possession or through recourse to Public Premises Act

when the Apex Court has held that possession can be taken by due

process of law which means that right of hearing or representation given

must be considered. In the instant case hearing has already been given

right up to the Supreme Court to the predecessor-in-interest of the

appellant. Since the interest has been acquired by appellant/Riazuddin

after acquisition having attained finality it cannot be deemed to have

created an interest in him.

22. In Rame Gowda (supra), appellant/plaintiff was claiming title to

the property whereas in the instant case no such title is being claimed by

the appellant. He is basing his claim on possession which according to

him has admittedly come into existence post-acquisition of which

cognizance cannot be taken. Simultaneously, the other two cases are also

distinguishable and the judgments cannot be applied blindly without co-

relation of facts.

23. Therefore, for the reasons mentioned above, I feel that the appeal

of the appellant/Sh.Riazuddin is totally misconceived as it does not

involve any question of law much less a substantial question of law. The

appellant/Sh.Riazuddin has already been directed to be ejected from the

suit premises.

24. Since the appellant is allegedly claiming to be in possession from

1970, therefore, I deem it just and proper that the appellant should be

given four weeks time for the purpose of vacating the premises which

means that he must vacate the premises in question on or before

31.05.2015 failing which the DDA shall be free to get the appellant

ejected from the suit premises. For the purpose of ejectment of the

appellant from the suit property, the DCP concerned on being approached

by the DDA shall render all necessary assistance for the ejectment of the

appellant/Sh.Riazuddin from the suit premises. This order of police

assistance has been passed only on account of the fact that the acquisition

proceedings have already attained finality right till the Supreme Court

and by permitting the retrieval of possession of the suit premises in

ordinary course by filing the suit for possession or under Public Premises

Act will not only make a mockery of the process of law but also show

disrespect to the orders of the Apex Court which had upheld the legality

of acquisition proceedings, as it will take years for the respondent/DDA

to retrieve the possession.

25. With these directions, the appeals are dismissed. A copy of the

order be given dasti to the parties and a copy be also sent to the

concerned DCP for information and compliance.

V.K. SHALI, J APRIL 28, 2015/dm