LPA 506/2010 Page 1 of 20 50 $~ * IN THE HIGH COURT OF DELHI AT NEW DELHI + LPA 506/2010 & CM 13135/2010 ASHOK KUMAR MITTAL & ORS. ..... Appellants Through: Mr. Anil K. Aggarwal, Advocate. versus UNION OF INDIA & ORS. ..... Respondents Through: Mr. Ajay Verma, Advocate for DDA. % Reserved on 27th July, 2010 Date of Decision: 5th August, 2010 CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE MANMOHAN 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes. 2. To be referred to the Reporter or not? Yes. 3. Whether the judgment should be reported in the Digest? Yes. J U D G M E N T MANMOHAN, J 1. Present Letters Patent appeal has been filed challenging the judgment and order dated 23rd April, 2010 whereby a learned Single Judge of this Court has dismissed the appellants’ writ petition being W.P.(C) 1216/2010 with costs of Rs.50,000/- to be paid by each of the appellants to Delhi Development Authority within ten weeks. 2. Mr. Anil K. Aggarwal, learned counsel for appellants contended that around 1971-1972, the appellants had purchased properties from LPA 506/2010 Page 2 of 20 various Bhoomidars by way of registered sale deeds. He further stated that appellants as well as other owners of the land in dispute had through their association, Ashok Nagar Welfare Association, applied for mutation of the said land in revenue record, but the same was not carried out. Mr. Aggarwal stated that around 1984, the appellants came to know that their lands had been acquired by respondent in the year 1982. 3. Mr. Anil Aggarwal, learned counsel for appellants submitted that the acquisition was illegal as the land had been acquired without giving any prior notice to the appellants. He further stated that the Government authorities had wrongly relied upon the mutation entries in the revenue record to ascertain the owner of the land and consequently, no compensation had been paid to the appellants. Mr. Aggarwal further contended that as no actual physical possession of the appellants’ land had ever been taken by the Revenue, the acquisition proceedings were vitiated. He also submitted that the acquisition notifications were ultra vires the Delhi Development Authority Act, 1957 and Part IX-A of Municipalities as well as Article 239AA of the Constitution besides being unfair, discriminatory and irrational. Mr. Aggarwal lastly submitted that the Government had decided to regularize unauthorized colonies on the acquired land which amounted to abandonment of the purpose for which the land had been acquired. In this connection learned counsel for appellants relied upon a large number of judgments of the Apex Court as well as this Court. LPA 506/2010 Page 3 of 20 4. On the other hand, Mr. Ajay Verma, learned counsel for respondent-DDA submitted that the present appeal was a gross abuse of process of Court, as all the arguments raised by Mr. Anil Aggarwal, learned counsel for appellants had been rejected by a reasoned judgment and order in the case of East End Apartments Cooperative Group Housing SocietyVs. D.D.A., 157 (2009) DLT 272 (DB). 5. Mr. Ajay Verma pointed out that Ashok Nagar Welfare Association as well as the alleged individual land owners had instituted as many as eighty five (85) proceedings in various Courts including Writ petitions/ Appeals/Special Leave Petitions/Civil Suits—all of which had been dismissed. He further stated that in a Special Leave petition filed against the aforesaid judgment of the Division Bench, the Supreme Court had issued notice confined to the issue of costs of Rs.10 lacs. The notice was subject to the condition that Mr. Mohan Singh would file an undertaking on behalf of himself and on behalf of Ashok Nagar Welfare Association that no litigation would be filed before any Court in respect of Khasra No. 391/263. The Supreme Court’s order dated 23rd March, 2009 is reproduced hereinbelow :- ORDER SLP (C) No. 5911/2009 Issue notice confining to the cost of rupees ten lakhs directed to be paid by Mohan Singh, who was prosecuting on behalf of Ashok Nagar Welfare Association. Interim stay of the direction to pay rupees ten lakhs. SLP(C) No. CC 3468/2009 Permission to file special leave petitions is dismissed. SLP(C) No. 6585 of 2009 Issue notice to the payment of cost by Mohan Singh only subject to filing of an undertaking on behalf of himself LPA 506/2010 Page 4 of 20 and on behalf of Ashok Nagar Welfare Association that no litigation will be filed before any court in respect of Khasra no. 391/263. 6. In rejoinder, Mr. Anil K. Aggarwal, learned counsel for appellant submitted that appellants were not bound by the undertaking given by Mr. Mohan Singh and in any event all the submissions advanced by him had not been considered in the previous eighty five proceedings, in particular in the Division Bench judgment in East End Apartments Cooperative Group Housing Society (supra). He also submitted that cause of action for filing the present writ petition was entirely different from that of the earlier proceedings 7. Having heard the parties and having perused the appeal papers, we are of the view that learned Single Judge was right in concluding that the present appeal is an abuse of process of Court as it amounts to re-litigation. The prayer clause in W.P.(C) 1216/2010 against which the present LPA has been filed, is reproduced hereinbelow:- “a) to issue a writ of or in the nature of mandamus and/or any other appropriate writ/s, order/s or direction/s quashing Regulation/s dated 24.3.2008, 16.6.2008 of the respondent nos.1/2 and also to quash the „Provisional‟ Certificate of Regularisation‟ dated 17.9.2008 of the respondent no.3. b) to issue a writ of or in the nature of mandamus and/or any other appropriate writ/s order/s or direction/s directing the respondents 1 and 2 to formally de-notify acquisition of the petitioners‟ land and to restore it back to the petitioners immediately, in a time bound manner, after due verification of their claim/s and on repayment of compensation, without interest, if any, previously paid to them by the respondents. c) to issue a writ of or in the nature of mandamus LPA 506/2010 Page 5 of 20 and/or any other appropriate writ/s, order/s or direction/s directing the respondents 1 and 2 to forthwith get the petitioners land vacated and to remove all encroachment thereupon and to hand over vacant and actual physical possession thereof to the petitioners and to their satisfaction. d) to issue a writ of or in the nature of mandamus and/or any other appropriate writ/s, order/s or direction/s restraining and prohibiting the respondents from disturbing and interfering with the peaceful enjoyment and possession of their subjected land and properly by the petitioners. e) to issue a writ of or in the nature of mandamus and/or any other appropriate writ/s, order/s or direction/s permitting the petitioners to raise construction over their land in terms of building plan previously sanctioned before the acquisition or to seek such sanction afresh and direct the respondent no.4 to do what is necessary, on receipt of such application from the petitioners, in a time bound manner. f) to issue a writ of or in the nature of mandamus and/or any other appropriate writ/s, order/s or direction/s restraining the respondent nos.1 to 3 to exercise the constitutional authority, power and duties of the elected municipal bodies against the petitioners subjected land and properties. g) to impose severe penalty/cost upon the respondent nos. 1 to 3 for abducting the constitutional powers of the elected municipal authorities and for abusing and misusing their statutory powers deliberately in detriment to the petitioners‟ constitutional and statutory rights; and h) to award suitable compensation to the petitioners for undue harassment, mental agony, pain, injury and damages caused to them by the derelict discharge of their constitutional and statutory duties by the respondent nos. 1 to 3. i) to pass any such and further orders as this Hon‟ble Court may deem fit and proper in the facts and circumstances of the present application and in the interest of justice and fairness.” LPA 506/2010 Page 6 of 20 8. The relevant portion of the impugned judgment including the portion of the Division Bench judgment in East End Apartments Cooperative Group Housing Society (supra), which the learned Single Judge has relied upon, is reproduced hereinbelow:- “6. Counsel for the respondent DDA submits that the present petition is misconceived and a gross abuse of the process of this Court. It is submitted that petitioners as members of the Ashok Nagar Welfare Association as well as individual have already exhausted the remedies available. Counsel also submits that the entire history has been noticed by a Division Bench of this Court in the case of East End Apartments Cooperative Group Housing Society Vs. Delhi Development Authority [W.P.(C)No.3326/2006 with CM No.1558/2007 and W.P.(C)No.311/2008] reported in 157 (2009) DLT 272. Counsel for the DDA has relied on paras 7 to 13, 15, 16, 18, 26, 27, 34 and 35, which are reproduced below:- 7. The Ashok Nagar Welfare Association (hereinafter for brevity‘s sake referred to as the ‗plaintiff Association‘) through its President Mr. Mohan Singh had filed a writ petition bearing CWP No. 1507/84 challenging Notifications dated 17th November, 1980 and 29th September, 1981 claiming that land bearing Khasra Nos. 391/263, 392/264, 393/264 and 402/268 was sold to its members between 1972-78 by one Jawaharlal who was the owner of the land. The contention raised in the petition was that wide publicity was not given to the notice under Section 4 of the Act and no individual notice was given to the members of the plaintiff Association. The writ petition came to be dismissed by the Division Bench of this Court on 21st May, 1998 holding that failure to give individual notice to the members of the Association does not invalidate the acquisition proceedings. In Paragraph 10 of the said judgment it was noted that possession of the acquired land was taken over on 1st October, 1982 and the land was placed at the disposal of the DDA under Section 22 of the DDA Act vide Notification dated 14th October, 1982. It was held that under the Land Acquisition Act, after possession of the land is taken over, the acquired land vests in the State free from all encumbrances. It may be mentioned that during the pendency of this petition an order of status quo was passed which stood vacated on dismissal of the writ petition. The SLP preferred against the said judgment was dismissed in limine by the Supreme Court on 6th July, 1998. LPA 506/2010 Page 7 of 20 8. The plaintiff Association then filed a second writ petition bearing WP(C) No. 1158/96 seeking a mandamus for regularization of the colony in Khasra No. 391/263 in respect of which the Association had claimed rights in earlier CWP No. 1507/1984. WP(C) 1158/96 was dismissed by the learned single Judge of this Court on 12th July, 1999 in view of the judgment dated 21st May, 1998 passed in CWP No. 1507/84. LPA No. 354/99 preferred against the said order dated 12th July, 1999 of the learned Single Judge was dismissed by the Division Bench on 11th July, 2000. SLP(C) No. 19499/2000 of the Association was also dismissed by the Supreme Court on 8th December, 2000. With this, the plea for regularization for the unauthorised colony in the above Khasra No. 391/263 also came to be dismissed by this Court and confirmed by the Supreme Court. 9. The plaintiff Association then initiated a third round of litigation in this Court by filing W.P.(C) No. 6268/98 praying for quashing of the award dated 30th September, 1982 on the ground that DDA had abandoned the award by initiating proceedings for regularization of the unauthorised colony on the land. A learned Single Judge of this Court dismissed this writ petition vide order dated 13th September, 2000 holding that the issue was covered by the earlier judgment dated 21st May, 1998 in CWP No. 1507/84. Against the said order of the learned single Judge, LPA No. 15/2001 was filed by the plaintiff Association which came to be dismissed by the Division Bench on 15th October, 2001. SLP(C) No. 4072/2002 preferred by the Association was dismissed as withdrawn by the Supreme Court by order dated 31st January, 2003. 10. Notwithstanding all these proceedings, the plaintiff Association filed one more writ petition bearing W.P.(C) No. 265/2001 in this Court praying that an inquiry be held as to how the compensation was disbursed in respect of 141 Bighas 15 Biswas of land which included land which is the subject-matter of the present petition. This writ petition was also dismissed by a Division Bench of this Court vide order dated 8th May, 2003 holding that there was no dispute that possession had been handed over to the appropriate authority and that the plaintiff Association could not approach the Court by filing the writ petition. The SLP filed by the Association in the Supreme Court was also dismissed. 11. CM(M) arises out of Suit No. 1066 of 1990 filed by the Association. This suit was originally filed in High Court and was subsequently transferred to the trial Court vide order dated 6th August, 1993 where it was registered as Suit No. 222/1998. In this suit, the plaintiff Association had claimed that it was the owner and in LPA 506/2010 Page 8 of 20 possession of land bearing Khasra No. 391/263 measuring 13 Bighas. It was further claimed that defendants 1 to 37 i.e. respondent Nos. 4 to 40 in CM(M), had encroached upon the land by dispossessing the members of the plaintiff Association. In this suit, the Association did not make the DDA or Union of India or the Govt. of NCT parties. However, the plaintiff Association averred in the suit that it had filed CWP No. 1507/1984 challenging the notifications under Sections 4 and 6 of the Land Acquisition Act and the Award 39/82- 85 and an order of status quo had been passed by this Court in the writ petition. In view of this, the High Court was pleased to implead DDA, Union of India and Delhi Administration as the defendants in the suit. Vide order dated 26th May, 1992, the plaintiff Association was directed to file amended memo of parties. This order was, however, not complied with. In the meantime, the suit was transferred to the trial Court. The defendants including DDA were proceeded ex parte but since there was failure to supply correct status regarding compliance of direction to file amended memo of parties, the ex parte order was set aside. Finally the amended memo of parties was filed on 1st August, 1998. The trial Court ordered for service of summons on the newly added defendants, namely, DDA, Union of India and Delhi Administration on 22nd September, 1998. Thereafter the trial Court was pleased to proceed ex parte against DDA as well as other defendants for non-appearance despite service of summons and an ex parte decree was passed on 6th January, 1999. According to the DDA, it was never served with summons in the said suit and had no knowledge of its pendency. The DDA learnt about the ex parte decree only on 29th August, 2000 after the filing of Execution Petition No. 74/1999 by the plaintiff Association. 12. On 21st November, 2000, the DDA moved the trial Court under Order 9 Rule 13 for setting aside the ex parte judgment and decree dated 6th January, 1999. It is seen from the records that DDA led evidence to show that it had not been served with any of the summons and that there was no mention of receipt of such summons in the DDA records. The DDA also produced the photocopy of Dak Register pertaining to the month of August, 1998 in order to show that no summons in respect of Suit No. 222/1998 (Suit No. 1066/1990) was received by the DDA. The DDA also led evidence to show that the seal alleged to have been used to acknowledge receipt was never used by the department in receiving the summons from different agencies. The trial Court, however, dismissed the application under Order 9 Rule 13 on 23rd July, 2005 on a technical ground that it was not LPA 506/2010 Page 9 of 20 accompanied by application for condonation of delay under Section 5 of the Limitation Act and that there was delay of 35 days in filing the application and no sufficient cause was shown. 13. At this stage, it may be noted that the plaintiff Association had also filed another suit, being Suit No. 649/1990 where again it contended that it was the owner and in actual physical possession of land measuring 141 Bighas and 15 Biswas in Khasra Nos. 391/263, 392/264, 393/264 and 402/268. In the said suit relief was claimed in respect of 13.4 Bighas out of Khasra No. 391/263 forming part of Plot Nos. 66-120, 157-162 and 208-212. The DDA raised an objection that the suit was not maintainable as the physical possession of the said land had already been taken on 1st October, 1982 and no portion of Khasra No. 391/263 was owned or possessed by the plaintiff Association. It was further contended by the DDA that the site was lying vacant and a boundary wall had been constructed by the DDA. The Civil Judge, Delhi dismissed Suit No. 649 of 1990 holding that a suit for possession is not maintainable since the land stood acquired under the Land Acquisition Act and the same was placed at the disposal of the DDA. It may be stated that against the dismissal of the said suit, the plaintiff Association filed an appeal, being RCA No. 3/2005, which was dismissed as withdrawn after recording the statement of the President of plaintiff Association to the effect that the Plot Nos. 66-120, 157-162 and 208-212 falling in Khasra No. 391/263 had merged in the changing road due to construction of new bridge over Hindon Canal and land across the road and some land/plots had been taken possession of by GAIL and the Irrigation Department. xxx xxx xxx 15. Coming then to WP(C) No. 3326/2006 filed by East End Apartment Cooperative Group Housing Society it is seen that the grievance of the society is that despite the fact that the property in question was acquired as far back as in 1982 for which an award was passed on 30th September, 1982 the suit has been decreed ex parte and in execution, the plaintiff Association has been put in possession on which it has no right, title or interest in view of the fact that land has already been vested in the State Government and has been entrusted to the DDA. It has been brought on record that in respect of the adjoining land being Khasra No. 393/264, a similar suit was filed and an ex parte decree was obtained by the Association and in appeal, that ex parte decree was set aside by a Division Bench of this Court holding that the report on the summons was fake and was deliberately LPA 506/2010 Page 10 of 20 manipulated to make it appear that service had been effected. It is also pointed out that in the said judgment it was held that a fraud had been played by the plaintiff Association in obtaining the ex parte decree. The said judgment of the Division Bench (Vol. 90 2001 DLT 583) was confirmed by the Supreme Court in (2002) 1 SCC 749. 16. In WP(C) No. 3326 of 2006 an order came to be passed by the Division Bench of this Court on 7th March, 2006 restraining the plaintiff Association from raising and/or making any construction over the land in question. On 12th November, 2007, the Division Bench recorded the statement of the learned Counsel appearing for the plaintiff Association that Mr. Mohan Singh has filed an affidavit offering to surrender the possession of 6 Bighas in Khasra No. 391/263 on certain terms and conditions stipulated in the affidavit. Learned Counsel also stated that the plaintiff Association is ready and willing to hand over the possession of whatsoever extent of land is in its possession in Khasra No. 391/263 and the Court may direct a proper inquiry into the circumstances in which a major part of the 920 Bighas of land acquired has been occupied by unauthorised persons. The Counsel further stated that Mr. Mohan Singh can make a solemn statement before the Court regarding the willingness of the Association to surrender the possession of the land in question. The Division Bench directed Mr. Mohan Singh to appear before the Registrar General of this Court on 14.11.2007 to get his statement recorded. The Registrar General was directed to get the following aspects verified from Mr. Mohan Singh: ―(1) What is the basis on which Ashok Nagar Welfare Association and Maha Kaleshwar Welfare claim title and possession over different parts of land acquired by the DDA in the village mentioned earlier. In particular, is there any document registered or otherwise executed by anyone owning any right or interest in the land in favour of anyone of the two Associations. If so, a copy of the document be got produced by Shri Mohan Singh. (2) In case, the Associations have no document of title in their possession, what is the basis on which the members of the Associations claim title to any portion for the lands acquired by the DDA in the village mentioned above. Copies of the documents of title, if any, available with the Associations may LPA 506/2010 Page 11 of 20 be produced by Shri Mohan Singh. (3) What is the total number of cases instituted by Shri Mohan Singh in the name of Ashok Nagar Welfare Association or Maha Kaleshwar Welfare Association are in different Courts in Delhi and what has been the result in the said cases in relation to the lands acquired by the DDA in the village mentioned above. In particular, are there any case over and above those mentioned at page No. 336 of the writ petition file. If so, the particulars of the said case may also be given. (4) Whether respondent No. 2 Association is willing to surrender possession of the land in its occupation as offered by Mr. Niyazi, its Counsel?‖ The Division Bench also asked the learned Counsel of respondent DDA whether it is ready and willing to transfer and/or allot the land in question in favour of DMRC for construction of the Metro Station at Ashok Nagar in terms of requisition sent by DMRC to it after the order dated 14.11.2007. 18. In the meanwhile Mr. Mohan Singh who appeared before the Registrar General on 14th November, 2007 backtracked from his statement. He now stated that he needed to convene a meeting of the members of the Association to seek their approval for making a statement regarding surrender of possession of the land. In his statement he also claimed to have filed 85 cases in respect of the land in question including the cases detailed in Annexure 11 Mark ―A‖ and promised to give details of those proceedings after consulting record of the plaintiff Association. The material part of the statement of Mr. Mohan Singh is reproduced below: ―I am aware that in November, 1980 a Notification under Section 4 of the Land Acquisition Act, 1894 was issued seeking to acquire 920 Bighas and 9 Biswas of land situated at Village Chilla Saroda Bangar, Delhi, for planned development which included the land which is the subject matter of writ petition except 5 Bighas 8 Biswas of land out of Khasra No. 391/263 which were not subject matter of Notification for acquisition. However, respondent No. 2 Association as its members did not receive the notice of notification issued under Section 4 of the Land Acquisition Act. I am now aware that Notification under section was followed by LPA 506/2010 Page 12 of 20 Notification under Section 6 of the Land Acquisition Act, 1894 pursuant to which the