Badal & Ors. vs M/S Niranjan Proptech Pvt. Ltd. & ...
2018 Latest Caselaw 2597 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           RFA No.178/2018

%                                                      25th April, 2018

BADAL & ORS.                                            ..... Appellants
                            Through:     Mr. Praveen Suri, Advocate.

                            Versus

M/s NIRANJAN PROPTECH PVT. LTD. & ORS. ..... Respondents

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

C.M. No.16397/2018 (exemption)

1. Exemption allowed subject to just exceptions.

C.M. stands disposed of.

Review Petition No.175/2018 (filed by appellants)

2. This review petition is filed by the appellants seeking

review of the judgment passed by this Court on 22.2.2018 dismissing

the first appeal filed under Section 96 CPC. By the review petition,

review is prayed on the ground that a Division Bench of this Court has

passed a judgment on 24.11.2004 whereby the notification of the

urbanization with respect to the Village Bijwasan has been stayed and

consequently it is argued that trial court has wrongly arrived at a

finding that land, which is subject matter of the Agreement to Sell and

the suit is urbanized, and which finding was reiterated by this Court in

para 10 of the judgment passed on 22.2.2018. I note that the issue of

urbanization of Village Bijwasan arose becaue if Village Bijwasan is

urbanized then the Delhi Land Reforms Act, 1954 (hereinafter referred

to as the "DLR Act") will not apply to the suit land and thus Section

33 of the DLR Act benefit of which was claimed by the appellants for

pleading illegality of the subject Agreement to Sell would not apply.

3.(i) This first ground on which review is sought, that the

Village Bijwasan is not urbanized, is in my opinion not maintainable

for two reasons. Firstly, it is seen that the judgment passed in the

appeal on 22.2.2018 proceeds on two independent grounds. The

independent ground for dismissing of the appeal on merits was,

besides the village being urbanized, that even assuming Section 33 of

the DLR Act applied even then Section 33 of the DLR Act would not

apply as the appellants/sellers did not have remaining with them in the

village less than 8 standard acres of land, and since this was the

position, hence the trial court held and which finding was upheld by

this Court, that the entering into the agreement to sell of the suit

property was not barred by Section 33 of the DLR Act. This aspect

has been dealt with in paras 8 and 9 of the judgment dated 22.2.2018,

and therefore on the ground that Division Bench has passed a

judgment on 24.11.2004 in W.P.(C) No.2596/2001 staying operation

of the urbanization notification that Village Bijwasan is not urbanized,

will not change the conclusion of the judgment which also was

independently based on non-applicability of Section 33 of the DLR

Act taking the village in question not being urbanized.

(ii) The second reason for not accepting the argument of the

appellants based on the judgment passed by the Division Bench of this

Court on 24.11.2004 is that the judgment of the Division Bench of this

Court dated 24.11.2004 in W.P.(C) No.2596/2001 only stays operation

of the urbanisation notification of the said village till a decision is

taken on the minutes dated 25.6.2002 and which were the

notes/minutes in the meeting in the office of the Lieutenant Governor

of Delhi. There is no plea in the review petition now filed that the

final decision on the minutes dated 25.6.2002 has not been taken by

the competent authority and which is a sine qua non for the temporary

suspension of the urbanization notification ordered in terms of the

judgment dated 24.11.2004 in W.P.(C) No.2596/2001. Therefore in

the absence of any specific averments by the appellants that no final

decision has been taken in terms of the minutes dated 25.6.2002 by the

Lieutenant Governor, it cannot be held that urbanization notification

continues to remain stayed. In any case, as already stated above,

independent of this aspect, the appeal has also been dismissed on

account of non-applicability of Section 33 of the DLR Act as already

stated above.

4.(i) The second reason which is urged to argue the review

petition is that the appellants have now come across a revenue record

showing that they have houses in the Village Bijwasan, and which is

filed as Annexure P-2, that therefore since the appellants have land in

the village, consequently the impugned judgment of the trial court had

to be set aside because Section 33 of the DLR Act applied.

(ii) Firstly, I do not find any specific averment in the review

petition and a ground which urges that appellants after entering into of

the Agreement to Sell continued to have land in the said village which

is less than 8 standard acres, and therefore the provision of Section 33

of the DLR Act will bar the subject Agreement to Sell. Also, in any

case, the bar with respect to 8 standard acres is of agricultural land and

not abadi land i.e land which is built upon. Once the houses are built

up, the land ceases to be agricultural land. In any case however

irrespective of anything else the fact of the matter is that this evidence

which is now relied upon was very much available for the appellants

to be led as evidence before the trial court, but the appellants did not

lead such evidence assuming that this evidence supports the

appellants. Not only the evidence which is now relied upon by the

review petition was not filed in the trial court, the same was not even

filed till the first appeal stage when the first appeal was disposed of by

the judgment dated 22.2.2018 and now after disposal of the suit as also

the first appeal additional evidence cannot be allowed. Therefore, in

the facts of the case, a review petition cannot be allowed as if the

appellants had filed an application under Order XLI Rule 27 CPC for

additional evidence in the first appeal, and that such application was

allowed by this Court, and yet thereafter this Court dismissed the

appeal on merits.

5. The facts of the present case show that appellants are out

and out dishonest persons. Appellants are completely dishonest people

because under the subject Agreement to Sell they received the entire

consideration of the property and also handed over possession of the

property subject matter of the Agreement to Sell to the

respondents/defendants. This is the finding of the trial court and which

has been upheld by this Court. Obviously, the appellants are trying to

be clever by half. Some litigants, and if I can say so even some

Advocates inasmuch as the Advocate who has argued the review

petition is the same Advocate who argued the main appeal decided by

the judgment dated 22.2.2018, are never satisfied. The scope of review

petition is not to re-argue the matter on merits which has been decided

by a detailed judgment.

6. The review petition being an abuse of process of law is

dismissed with costs of Rs.50,000/-, and which costs shall be

deposited by the review petitioners/appellants with the website

www.bharatkeveer.gov.in within six weeks. Receipt be filed within

two weeks thereafter in this Court. In case the appellants do not deposit

the costs as stated above the Registry will list the matter in Court for

taking appropriate action against the appellants/review petitioners.

APRIL 25, 2018/ Ne                            VALMIKI J. MEHTA, J