Delhi High Court
North, Mcd vs Jai Singh & Ors on 21 March, 2018
$~4 & 5
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on :- 21st March, 2018
+ CM (M) 532/2011 & CM Nos. 8796/2011, 11276/2011,
5842/2015
MCD ..... Petitioner
Through: Mr. Sanjay Poddar, Sr. Adv.
with Ms. Mini Pushkarna,
Mr. Govind Kumar & Mr.
Shivam Goel, Advs.
versus
JAI SINGH & ORS ..... Respondents
Through: Mr. Arvind Bhatt & Mr.Kuber
Giri, Advs. for R-1 & 2.
Ms. Bhakti Pasrija Sethi, Adv.
for DTC.
+ CM (M) 1105/2012 & CM No. 17445/2012
NORTH, MCD ..... Petitioner
Through: Mr. Sanjay Poddar, Sr. Adv.
with Ms. Mini Pushkarna,
Mr. Govind Kumar & Mr.
Shivam Goel, Advs.
versus
JAI SINGH & ORS ..... Respondents
Through: Mr. Arvind Bhatt & Mr.Kuber
Giri, Advs. for R-1 & 2.
Ms. Bhakti Pasrija Sethi, Adv.
for DTC.
Mr. Arun Birbal, Mr. Sanjay
Singh & Mr. Ajay Birbal, Advs.
for DDA.
CM (M) No. 532/2011 & conn. Page 1 of 5
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. This order is being passed in continuation of a detailed common
order passed on 13.07.2017 and for purposes of background facts the
said previous order will be treated as part of this order. Suffice it to
note here that on the eviction petition (E-67/1986) instituted by the
private party respondents an eviction order was passed by the
Additional Rent Controller on 11.11.99 in respect of the subject
property described as built up structure over the land in question i.e.
plot no.2, Block B, Transport Area of Jhandewalan Estate, Desh
Bandhu Das Gupta Road, Karol Bagh, New Delhi-110005, as shown
in site plan (Ex.AW-1/14) against the petitioner Municipal
Corporation.
2. The eviction order concededly became final and binding, it
having been confirmed by order dated 23.09.2010 of the Supreme
Court in appeal. The execution proceedings (Ex. 88/08) taken out in
the wake of the said order are pending before the Additional Rent
Controller. The first captioned appeal was filed seeking to assail two
of the orders passed in the said execution proceedings, the Additional
Rent Controller having disposed of the application under Section 151
of the Code of Civil Procedure, 1908 (CPC) of the decree holders by
order dated 01.04.2014 observing, inter alia, that warrant of
possession will have to be issued and that the report of the bailiff
thereupon only could possibly show if there were any hurdles, there
being no substance found in the objections of the judgment debtor
(municipal corporation) on the plea that the land beneath and
surrounding the said structure does not belong to the decree holder, it
consequently not being possible to hand over the possession of the
super-structure alone and the executing court having issued warrant of
possession by subsequent order dated 08.04.2011 rejecting the
objection about the execution petition being not maintainable for the
reason copies of the site plan or decree were not filed therewith.
3. The private party respondents had also instituted, in 1980 a suit
(suit No. 804/2006) seeking the relief of declaration to the effect of
they being the owner of the subject property impleading Delhi
Transport Corporation (DTC), Delhi Development Authority (DDA),
Union of India, Estate Officer and Lieutenant Governor of Union
Territory of Delhi as first to fifth defendants. The Municipal
Corporation of Delhi (MCD) had moved an application seeking
impleadment in the said suit under Order 1 Rule 10 CPC, which
application was considered but dismissed by the Civil Judge by order
dated 18.09.2012. It may be mentioned here that the contentions of
the petitioner in the said application for impleadment in the civil suit
were more or less same as the defences urged in the eviction case
referred to above. The dismissal of the said application by the Civil
Judge by order dated 18.09.2012 is the subject matter of challenge on
the second captioned petition.
4. When the first captioned petition came up before the Court on
04.05.2011, it was submitted on behalf of the petitioners that part of
the decree to the extent of eviction from the structure built up on the
aforementioned plot of land had already been satisfied, the grievance
of the judgment debtor being that under the garb of the eviction order,
the decree holder was making an attempt to take possession of the
open land. The execution of the eviction order was stayed by order
dated 04.05.2011, the said order having continued till date.
5. As is noted at some length in the proceedings recorded on
13.07.2017, Union of India had proceeded to acquire at the instance of
the petitioner in the year 2011, the entire built up structure which is in
dispute, it being the case of the petitioner that the open land in any
case vested with DDA. The acquisition proceedings have been
challenged by the decree holders who claim to be the landlord vis-à-
vis the petitioner, in which context there is an interim order operating
directing the parties to maintain status quo. It is against the said
backdrop that it was fairly conceded by the learned counsel on both
sides before the Court on 13.07.2017 that the order of eviction cannot
be presently executed.
6. Though it was initially pressed before the Court on 13.07.2017
that while the challenge to the acquisition proceedings is adjudicated
upon, the petitioner be called upon to pay mesne profits in terms of the
ruling of the Supreme Court in Atma Ram Properties (P) Ltd. vs.
Federal Motors (P) Ltd. (2005) 1 SCC 705. In answer to the pointed
query from the court as to the propriety of such directions against the
above backdrop, it was submitted that the decree holders to avoid any
controversy at this stage would only press for deposit and not payment
of mesne profits. The learned single judge, then in seisin of the matter,
declined to pass any such order observing that the court will not go
into an academic exercise, the money if found due on such account
always being recoverable from the municipal corporation.
7. The writ petition challenging the acquisition proceedings is still
pending before the appropriate bench of this Court and there is no
certainty as on date as to when the said proceedings would culminate
in final adjudication. The result of such proceedings have a direct
bearing on the questions raised by the petitions at hand. In these
circumstances, it is deemed just and proper that the proceedings here
are adjourned sine die, to be taken up after decision is rendered in the
writ petition challenging the acquisition of the subject lands/property.
8. Thus, these matters are adjourned sine die with liberty given to
all sides to initiate revival of the proceedings after adjudication in the
land acquisition matter.
R.K.GAUBA, J.
MARCH 21, 2018
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