Delhi High Court
The Dhaka Gram Vikas Samiti (Regd) ... vs North Delhi Municipal ... on 13 March, 2020
$~7
*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 13th March, 2020
+ LPA 753/2019
THE DHAKA GRAM VIKAS
SAMITI (REGD) & ORS ..... Appellants
Through: Mr. S. S. Khatri, Adv.
versus
NORTH DELHI MUNICIPAL
CORPORATION & ORS ..... Respondents
Through: Mr. Abhijat, Mr. Rakesh Saini and
Mr. Shaaswat Jindal, Advs. for
respondent no. 6
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE C.HARI SHANKAR
ORDER
% 13.03.2020
D.N. PATEL, CHIEF JUSTICE (ORAL)
LPA No. 753/2019
1. This Letters Patent Appeal has been preferred by the appellants
(original petitioners), whose writ petition being WP(C) No. 11203/2019 was
dismissed by the learned Single Judge vide judgment and order dated 21 st
October, 2019 (Annexure A to the memo of this writ petition), whereby
prayer for cancelling the building plan of the respondent no. 2 was not
accepted by the learned Single Judge.
2. It appears that the land in dispute is bearing Khasra No. 412/74 (min),
admeasuring 67 bigha 15 biswas, ownership of the part whereof is claimed
by the respondent no. 6 as plot no. 34, for which building plan was approved
by the Municipal Corporation of Delhi on 6th September, 2019. For
cancellation of this building plan, a writ petition being WP(C) no.
11203/2019 was preferred by the appellant.
3. It further appears from the facts of the case that the ownership of the
land in question is in dispute. Paragraph 7 of the counter affidavit filed by
the respondent no. 6 in this Letters Patent Appeal reads as under:
"7. I say that the contents of Para 4 of the appeal are not
admitted and are denied. The plot is in possession of the family
of Respondent No.6 for more than 100 years and is being used
as their residence. The true facts are as under:-
i) Sh. Nathu, father of Sh. Jodha Ram @ Jodha Singh was the
absolute owner and in possession of properties bearing No.34
and 25 since prior to 1900. A mud house with thatched roof was
there on the property. Sh. Jodha was employed as a chowkidar
in All India Radio office at Kingsway Camp near village
Dhakka, Kingsway Camp, Delhi.
ii) In 1957, Sh. Jodha constructed a pucca house in place of
mud house with thatched roof. The bricks were ordered from
one Yadav Bhatta Co., Badii Bawana Road, Delhi State. The
bricks with Tadav' mark are still embedded in the "14"
(fourteen) inch brick wall still erected at the suit property. The
receipts dated 27.02.1957, 02.03.1957, 09.03.1957, 27.03.1957,
02/06/1957, 03/05/1957, 13.03.1957, 07.04.1957, 12.04.1957
are filed on record.
iii) The house was assessed to House Tax. The receipts of
House Tax/Notices Application dated 04.11.1966, 27.11.1974,
07.03.1975, 01.04.1975, 26.07.1975, 10.10.1079, 15.09.1980
and 20.08.-1981 in the name of Jodha or his wife, Smt. Sammo
Devi are filed on record. A water bill in the name of Sh. Jodha
for the year 1973-74 issued by MCD is on record.
iv) Sh. Jodha Ram @ Jodha Singh died in 1973/1974 at 34,
Village Dhakka, Delhi. From 26.03.1974, Smt. Sammo, widow
of late Sh. Jodha Ram @ Jodha Singh started receiving pension
of Rs.375/- per month from the Central Govt. on account of
services of Sh. Jodha Ram.
v) On 5th July, 1975 Smt. Sammo Devi adopted one Jai Singh,
son of Sh. Mange Ram (her brother) after the demise of her
husband, Sh. Jodha Ram by a registered Adoption Deed. Later,
the adopted son and his wife started harassing and ill treating
Smt. Sammo Devi. Smt. Sammo Devi turned them out of the
house. On 22nd September, 1995, Smt. Sammo Devi executed a
Will bequeathing all her moveable and immoveable assets in
favour of three sons of Defendant No.1.
vi) Smt. Sammo Devi died on 25th February, 1996. In 1994, Sh.
Jai Singh, the adopted son filed a suit for perpetual injunction
against Shri Sumer Singh, father of Respondent No.6 (Suit
No.359/02) for restraining Defendant No.1 Shri Sumer Singh
from causing obstruction in the peaceful possession and user of
the properties acquired by him. On 31st May, 2005, the suit was
withdrawn by Sh. Jai Singh on the ground that he has been
allegedly dispossessed by Shri Sumer Singh, father of the
Respondent No.6. On 20th August, 2004, Sh. Jai Singh filed a
civil suit (Suit No. 109/2004) against Shri Sumer Singh and his
three sons for recovery of possession of properties bearing
No.34 and 25, Village Dhakka, Kingsway Camp, Delhi and for
mesne profits.
vii) On 7th June, 2013, the suit was settled between the
parties. The terms of settlement were that the parties shall have
equal shares in the two properties No.25 and 34, Village
Dhakka; (ii) House No.34, Village Dhakka shall come to the
share of three sons of Shri Sumer Singh and property No.25,
Village Dhakka shall fall to the share of Sh. Jai Singh. The
parties shall be free to deal with their respective properties in
the manner they wish. In view of the statement of the parties,
the suit was decreed by Sh. Parveen Singh, learned SCJ/RC
(Central), Delhi. The compromise statement was to form part of
decree.
viii) Vide letter bearing No.Tax/CLZ/2013/1820 dated
20.09.2013, the property No.34, Village Dhakka, Delhi was
mutated in favour of three sons of Defendant No.1, namely, Sh.
Rajneesh, Sh. Anand Pal and Sh. Kailash in the records of
M.C.D. Vide relinquishment deed dated 7th February, 2017 two
sons of Shri Sumer Singh namely, Sh. Kailash Chander and Sh.
Anand Pal Singh released all their rights, title and interest in
the property No.34, Village Dhakka in favour of their brother
(third co-owner) Sh. Rajneesh, Respondent No.6 herein. The
electricity and water connection are installed in the name of Sh.
Rajneesh in the suit property. On 29th April, 2019, Sh.
Ranjeesh, Respondent No.6 being the absolute owner of the suit
property applied to Bldg. Deptt., Civil Lines Zone, North Delhi
Municipal Corporation for sanction of the building plan for
reconstructing the suit property. An amount of Rs. 1,05,374.00
(Rupees one lakh five thousand and three hundred seventy four
only) was deposited online via transactions No.49221560 by the
Respondent No.6.
x) The building plan was sanctioned by MCD. Respondent No.5
intends to raise construction on the suit property as per the
sanctioned plan. The building plan is displayed at the
property."
4. In view of the aforesaid facts, a highly disputed question of fact is
involved about the ownership of the property in question. As per the
appellants (original petitioners), the land in question pertains to village and
was used for the common area and/or common baithak; whereas respondent
no. 6 is concerned, they are the owners of the property in question as
narrated in detail in paragraph 7 of the aforesaid counter affidavit filed by
respondent no. 6. In view of these facts, we see no reason to entertain this
Letters Patent Appeal. This aspect of the matter and the disputed question of
fact is properly appreciated by the learned Single Judge while deciding
WP(C) No. 11203/2019 vide judgment and order dated 21st October, 2019.
5. It has been held by the Supreme Court in paragraphs 14, 15 and 19 of
the judgment in Roshina T. vs. Abdul Azeez K.T. and Others (2019) 2 SCC
329, which read as under:
"14. It has been consistently held by this Court that a regular
suit is the appropriate remedy for
settlement of the disputes relating to property rights between
the private persons. The remedy under Article 226 of the
Constitution shall not be available except where violation of
some statutory duty on the part of statutory authority is
alleged. In such cases, the Court has jurisdiction to issue
appropriate directions to the authority concerned. It is held
that the High Court cannot allow its constitutional
jurisdiction to be used for deciding disputes, for which
remedies under the general law, civil or criminal are
available. This Court has held that it is not intended to
replace the ordinary remedies by way of a civil suit or
application available to an aggrieved person. The
jurisdiction under Article 226 of the Constitution being
special and extraordinary, it should not be exercised
casually or lightly on mere asking by the litigant. (See
Mohan Pande vs. Usha Rani, 1992 (4) SCC 61 and Dwarka
Prasad Agrawal vs BD Agrawal, (2003) 6 SCC 230).
15. In our view, the writ petition to claim such relief was
not, therefore, legally permissible. It, therefore, deserved
dismissal in limine on the ground of availability of an
alternative remedy of filing a civil suit by respondent No.1
(writ petitioner) in the Civil Court.
xxx xxx xxx
19. We do not agree with the submissions of
learned counsel for respondent No.1 for the reasons that first
there did exist a dispute between the appellant and
respondent No. 1 as to who was in possession of the flat in
question at the relevant time; Second, a dispute
regarding possession of the said flat between the two
private individuals couldbe decided only by the Civil Court in
civil suit or by the Criminal Court in Section 145
Cr.P.C proceedings but not in the writ petition
under Article 226 of the Constitution."
6. In view of the decision, no error has been committed by the learned
Single Judge while deciding WP(C) No. 11203/2019 vide judgment and
order dated 21st October, 2019; hence, there is no substance in this Letters
Patent Appeal and the same is dismissed. Moreover, a civil suit being CS
No. 704/2019 is already pending in Rohini District Court, wherein few of the
plaintiffs are the appellants before this Court in this Letters Patent Appeal, in
which an application under Order XXXIX Rules 1 and 2 of the CPC is also
pending with the learned trial court as stated by the counsel for the
respondent no. 6. In view of these facts, we see no reason to entertain this
Letters Patent Appeal and the same is dismissed. The amount of ₹ 1 lac,
deposited by the appellants pursuant to the order dated 29 th November, 2019
passed by the learned Single Judge, is ordered to be returned to the
appellants. The amount shall be returned by the Registrar General of this
Court by account payee cheque after following due process.
CM Appl. Nos. 51447/2019 & 54520/2019
In view of the order passed in the Letters Patent Appeal, these
applications are disposed of.
CHIEF JUSTICE
C.HARI SHANKAR, J.
MARCH 13, 2020
r.bararia
