IN THE HIGH COURT OF DELHI AT NEW DELHI

 

SUBJECT: EVICTION OF PERSONS IN UNAUTHORISED POSSESSION OF LAND

 

RESERVED ON:    10-11-2004

 

DATE OF DECISION:      19-11-2004

 

WP(C) No. 1947/2002

 

Jheel Kurenja Milk Producers'

Co-operative Society Ltd. & Anr.           ........    Petitioners

Through:  Mr.Sandeep Sethi, Sr. Advocate                                        with Mr. P.S.Bindra, Advocate.

                                                             

                                    VERSUS           

 

D.D.A. & Ors.                                          ........      Respondents

Through:  Mr.Jagmohan Sabharwal,                             Senior Advocate with Mr. Rajan  Sabharwal,

Advocate.

 

WP(C) No.3364/2002

 

Jheel Kurenja Co-operative Milk

Producers Society Ltd. & Anr.                .........     Petitioners

                                                              Through: Mr.Sandeep Sethi, Sr.Advocate

                                                              with Mr. P.S.Bindra, Advocate.

                                                             

                                    VERSUS           

 

D.D.A. & Anr.                                          ........      Respondents

                                                              Through: Mr.Jagmohan Sabharwal,        

                                                              Senior Advocate with Mr. Rajan Sabharwal,

Advocate.

 

WP(C) No.534/2002

 

Jheel Kurenja Co-operative Milk

Producers Society Ltd. & Anr.                .........     Petitioners

                                                              Through: Mr.Sandeep Sethi, Sr.Advocate                                                              with Mr. P.S.Bindra, Advocate.

                                                             

                                    VERSUS           

 

Shri Subhash Sharma & Ors.                  ........      Respondents

Through: Mr.Jagmohan Sabharwal,                              Senior Advocate with Mr. Rajan            Sabharwal, Advocate.

PRADEEP NANDRAJOG, J.

 

1.                  In the year 1995 D.D.A initiated proceedings for eviction of persons alleged to be in unauthorised possession of land, detailed in the notices, situate in the revenue estate of village Chiraga (South) and Jheel Kurenja.  Notice(s) reads as under:

NOTICE UNDER SUB-SECTION (1) AND CLAUSE (b)(ii) OF SUB-SECTION (2) OF SECTION 4 OF THE PUBLIC PREMISES (EVICTION OF UNAUTHORISED OCCUPANTS ACT 1971)

 

Shri Gyasi S/o Nyadar

File No.EV/Chiraga(South)                                          dt. 31.3.95

 

WHEREAS I, the undersigned am of the opinion on the grounds specified below that you are in unauthorised occupation of the Public Premises mentioned in the Schedule below and that you should be evicted from the said premises.

 

                                          GROUNDS

 

The land mentioned in the schedule below belongs to Union of India and is under the Management and control of the Delhi Development Authority.

Now, therefore, in pursuance of sub-section (1) of Section 4 of the P.P Act, I hereby call upon you to show cause on or before ........why such an order of eviction should not be made.

 

AND in pursuance of clause (b)(ii) of Sub-Section (2) of Section 4, I also call upon you to appear before me in person or through a duly authorised representative capable to answer all material question connected with the matter alongwith evidence which you intend to produce in support of the show cause on ...... at.......for personal hearing.  In case you fail to appear on the said date and time, the case will be decided ex -parte.

 

                                          SCHEDULE

(Description of land in question stands detailed in the notices issued to the individuals).

2.                  On learning about the notice(s) aforesaid, petitioner Jheel Kurenja Co-op Milk Producers Society, moved an application for impleadment in the proceedings. Facts stated for impleadment were:

"1.  That the petitioner has filed an eviction petition against the respondent under the Public Premises (Eviction of Unauthorised Persons) Act, which is pending adjudication before this Hon'ble Court.

 

2.                  That the petition of the petitioner is legally incompetent and misconceived in law as the same is based on wrong and false allegations.  The respondent is not unauthorised occupant as alleged but the sub-lessee under the applicant has the right to enjoy the use of the land on account of his paying the lease money to the petitioner through the applicant.

 

3.                  That the applicant which is registered society was leased out the entire land in question by the petitioner, then called the Delhi Improvement Trust vide Resolution No.103 dated  05.05.1958.

 

4.                  The lease granted by the petitioner in favour of the applicant is still valid and legal.  The applicant has been paying lease money to the petitioner regularly and the last lease money amounting to Rs.13,569.59 has been paid to the petitioner on 6.7.1993 for the year 1992-93.  it is further stated that title of the applicant to the said land was upheld by the Hon'ble High Court of Delhi in RFA No.250/71, in terms of the undertaking given by the Counsel for the petitioner that applicant will only be dispossessed after due process of law.

 

5.                  That the respondent being member of the applicant is sub-lessee of the land under his occupation and the possession of the respondent is only permissive and he can claim his right or interest only through the applicant society.  Similarly no action can be taken against the respondent directly without the applicant being made the party, as the applicant society is in possession and control of the entire land being the lessee.  The alleged notice and proceedings against the respondent are legally improper and vitiated.

 

 

6.                  The applicant-society is the necessary and proper party in the above said matter for the real adjudication of the controversy in dispute and the same cannot be resolved without the applicant being impleaded as a party to give material reply and explanation to the issue in dispute."

 

3.                  In reply, D.D.A responded:

"1.   Para 1 of the application is a matter of record and needs no comments.

 

2.                  Para 2 of the application, as stated, and the contentions made therein are wrong, baseless, misconceived hence denied.  The respondent is an unauthorised occupant of Nazul land after the cancellation of the lease granted to the applicant allegedly a lessee.  Since the lease of the applicant was cancelled, the applicant or anyone claiming through the applicant is an unauthorised occupant and as such the respondent, being in unauthorised occupation of the Govt. land (Nazul Land), has no right to use the same.  The alleged payment of lease money to the petitioner through the applicant is without any consent, permission or demand of the petitioner.

 

3.                  Para 3 of the application is a matter of record.

 

4.                  Para 4 of the application, as stated, and the contentions made therein, are wrong, misconceived and misinterpreted, hence denied.  The alleged payment of lease money paid to the petitioner amounting to Rs.13,569.56P or any other amount is without consent, permission or demand of the petitioner.  It is submitted that the petitioner had written to the applicant to stip payments of lease money since the term of the lease had expired.  It is pertinent to state that the undertaking given by the counsel for the petitioner (DDA) before the Hon'ble High Court of Delhi in RFA No.250/71 does not debar the petitioner from taking any action under P.P Act against the respondent or any unauthorised occupant of government land.

 

 

5.                  Para 5 of the applications, as stated, and the contentions made therein are wrong, misconceived and not tenable in law or on facts.  Para  2 of the reply above may also be kindly referred to.  However, the petitioner has no objection if the applicant-society is impleaded as a necessary party by this Hon'ble Court, but it is denied that the applicant-society is in possession and control of the entire land as alleged.  It is also denied that the alleged notice and proceedings against the respondent are legally improper and vitiated.

 

6.                  Para 6 of the application, as stated, is wrong and denied.  It is, however, submitted that the petitioner has no objection if this Hon'ble Court deems it fit and proper to implead the applicant as a necessary party and proceed against both the respondent and the applicant under the provisions of the Public Premises (Eviction of Unauthorised Occupant) Act, 1971.

 

                     It is, therefore, prayed that the application fo the applicant-society may be disposed of accordingly keeping in view the facts and circumstances of the case."

 

4.                  Dismissing the applications filed by the petitioner for impleadment, Estate Officer held:

"The DDA has also brought to my notice the judgment of Hon'ble High Court of Delhi in CWP 3797/91 Smt. Dhan Kaur vs. DDA decided on 12.8.93.  In the case of Dhan Kaur, Jheel Kuranja Cooperative Milk Producers Society, was respondent no.2.   It was the case of Smt. Dhan Kaur that she has come to use and occupy the land through the said society and is entitled to protection of her use and occupation since the said society was the lessee.  The said contention was negatived by the High Court and it was held that the Jheel Khuranja Cooperative Milk Producers Society did not have any subsisting right, title or interest and so anyone claiming through the society cannot legally continue to be in use and occupation and they are rank trespassers and encroachers.  With these observations the writ petitions were dismissed.

 

It is submitted before me that it having already been held by the High Court in the judgment referred to above that the possession of the land by the society is unwarranted and illegal and not recognised by law, it does not behove of the society to seek to become a party in these proceedings.  It is contended that the judgment of the High Court in which society was  party has become final and constitutes res judicata and it is not open to the society to contend that they have any subsisting right, title or interest in the government land under reference.

 

It is also submitted before me that the Full Bench decision of Delhi High Court in the judgment reported as AIR 1978 (Delhi) 174 held that  a public authority is entitled to use the permissible force to remove the encroacher/ trespassers. Delhi Development Authority counsel, Sh. O.P.Saxena also pointed out the three judgments of the Hon'ble Supreme Court where, after noticing how public interest is being adversely affected by encroacher and trespassers, it was held that a trespasser and encroacher is not entitled to pray relief of injunction against the true owners.  The said decisions are 1995(2) Judgment Today 504,1994(6) Judgment Today 585 and 1995(3) S.C.C.33.

 

I am in agreement with the contentions that have been raised by Delhi Development Authority that it has been finally and conclusively decided by the Delhi High Court that the possession of the society or the persons claiming through them is unwarranted and illegal and that the society does not have any subsisting right, title or interest in the land, there having been no extension of the lease deed after 1977.

 

It may also be noticed that the suit filed by the society for an injunction restraining Delhi Development Authority from dispossessing it had already been dismissed by the civil court and the statement of Sh. Bishamber Dayal, Senior Advocate on which reliance is placed by the Society is also of no consequence inasmuch as the contempt proceedings initiated by the society thereafter for alleged violation of the undertaking were dismissed as withdrawn by the High Court on 18.4.95 and after the said statement there was another CWP instituted by the society wherein it has already been held that the society does not have any right to continue in use and occupation either through itself or through its members after 1977 and the said judgment becomes final and binding on the parties.

 

For the aforesaid reasons and after going through the respective contentions of the parties at length I feel that there is no case to implead the society as  party to the present proceedings pending under P.P Act, 1971 for eviction and damages instituted against the persons actually occupying the land.  The fact that the said  person/noticee is claiming possession through the society, does not entitle the society to be made a party, particularly when the Hon'ble Court of Delhi has already given its judgment holding the society was not having any subsisting right, title or interest in the land.

 

I, therefore, dismiss the application filed by the society for impleadment as necessary party in the present proceeding pending under PP Act, 1971 with the observation that the society has no subsisting right, title or interest in the land/premises, this fact having been conclusively determined by the Hon'ble High Court of Delhi and the present application has been made only for the purpose of delaying the present proceedings of Eviction under P.P Act, 1971."

 

5.                  I may note that the Estate Officer passed orders on different dates, but reasons are identical.

 

6.                  The Estate Officer, by and under the same order(s) decided the matter on merits against the notice(s) and passed an eviction order(s).  Reasons, being identical in all cases, are as under:

"The statement of Sh. Harish Chander, Halka Patwari, PW-1 was recorded who stated that the land in dispute is a government land.  According to the entry of Jama Bandi of Revenue Estate Chiraga (South) for the year 1974-75, the land is govt. land and is under the management and control of DDA.  He has also brought the original revenue record of Jama Bandi for the year 1974-75 of Chiraga (South) and a copy of which is Exh.PW1/1.  He has also brought the Aks Sajra of disputed land and the copy of it has been Exb.PW1/2 and the land in dispute has been shown as read and marked as `A'.

 

DDA examined Sh. Anil Kumar, Meeting Clerk, PW-2 who filed the copy of the Nazul Agreement 1937 on the basis of which the land was placed at the disposal of the Delhi Improvement Trust, the successor body whereof is Delhi Development Authority.  The said  Nazul Agreement included the transfer of the revenue estate of Chiraga (South) in which the land in dispute is situated.  Copy of Nazul Agreement is Exh. PW2/1.

 

The disputed land was previously on lease as a term-lease with the said society which has now no subsisting right, title or interest in the said land and the land is still under unauthorised occupation of the noticee who claims to be a sub lessee as member of the society.  In vies of the statement and documents on record, I hold the noticee is unauthorised occupant of govt. land in khasra No.50/2 (min) Chiraga (South) and does not hold any right/title over the land in dispute and the noticee is therefore liable to be evicted from this govt. land/public premises."

 

7.                  Two captioned petitions were filed by the society challenging the order(s) passed by the Estate Officer, by which order(s) he dismissed the application filed by the society for impleadment and simultaneously ordered eviction of the notice(s).

 

8.                  W.P(C) No.1947/02 relates to the eviction ordered against Sh. Manoj Kumar and Sh. Jai Bhagwan,  Challenge is to order dated 29.1.2002.  Challenge in W.P(C) No.3364/02 is to 24 orders passed against 24 notices in which claim of the society for impleadment was denied.  Details thereof are as under:

Case No.  Name of member/sub lessee   Date of order passed

                                                                                   by  the Estate Officer

 

92/94            Dinish s/o Sultan                                     12.02.2002

177/94          Rameshwar s/o Sultan        13.02.2002

181/94          Sohan Lal s/o Ram Lal       26.02.2002

185/94          Murari Kasoriet s/o Bhagwane                28.02.2002

186/94          Sunil Kumar s/o Hari Chand                    21.02.2002

189/94          Narender Singh s/o Sultan  25.02.2002

208/94          Ganga Das s/o Puran                              25.01.2002

214/94          Shri Omi s/o Sher Singh     22.01.2002

215/94          Ram Parkash s/o Sh.Chanan                   29. 01. 2002

222/94          Habloo s/o Ram Kumar     18.02.2002

226/94          Sarwan s/o Chet Ram                             11.02.2002

230/94          Gopal s/o Lalbu                                      14.02.2002

231/94          Harshai s/o Ram Kumar     21.02.2002

232/94          Kaloo s/o Arjuna                                    18.02.2002

238/94          Hira s/o Ram Lal                                     19.02.2002

250/94          Bhagwan s/o Chandorya    22.01.2002

255/94          Smt. Shalendri Devi w/o Ramesh             25.01.2002

257/94          Smt.Ram Murti Devi,w/o Khazana 23.01.2002

302/94          Sh. Dal Chand s/o Khacheroo                 13.02.2002

307/94          Tara Chand s/o Lekh Ram 20.02.2002

339/94          Ramesh s/o Man Singh       26.02.2002

458/94          Pankhi Ram s/o Bal Ram    20.02.2002

491/94          Amar s/o Har Lal                                    22.01.2002

499/94          Muniraj Surender Kumar   

                     s/o Ganga Ram                                       18.01.2002

9.                  Challenge to the orders is on the ground that the estate officer held that the land in dispute was previously on lease with the society which has no subsisting right, title or interest in said land and the land is under the unauthorised occupation of the noticee(s) who claims to be sub lessee as member of the society.  Since society had no right, title or interest in the land, the noticee(s) would have none and is therefore would be liable for eviction. Contention urged is that the matter in issue therefore required the society to be impleaded as a party, for it was the society which could have effectively defended the matter as it was case of DDA that land was allotted to the society on lease which had expired and as a consequence the society had no interest in the land.  It is stated by the society that it was affected by the proceedings and therefore was a necessary party.

 

10.                In the writ petitions, the society alleges that it was allotted a large chunk of land, amongst others, in village Jheer Kuranja and Chiraga South by the Delhi Improvement Trust pursuant to resolution No.103 dated 25.5.1950.  On 16.10.1967 two letters were issued by DDA as under:-

"No.TN-16(59)64     New Delhi, 16th October, 1967.                    

                     From: Shri M.L.Mongia

                     Additional Collector Nazul

                    

                     To

                     The Secretary,

                     Jheel Kurnja Cooperative Milk Producers'

                     Society Ltd.

                     325/84, Jheel Kuranja,

                     P.O. Gandhi Nagar,

                     Delhi-31.

 

Sub:              Lease of Nazul land in Inderpat and Chiragaha South in possession of the Jheel Kuranja Cooperative Milk Producers' Society Ltd for agricultural purposes.

 

WHEREAS the terms of lease of Nazul land situated in Estates of Inderpat and Chiraga South given to the Jheel Kuranja Cooperative Milk Producers' Society Ltd., Delhi stands expired, you are therefore, hereby required to hand over the possession of the land immediately but not later than the 23rd October, 1967 to the Tehsildar Nazul, Delhi Development Authority.

 

                                                               Sd/-

                                                  M.L.Mongia,

                                            Addl.Collector Nazul

                                          Delhi Development Authority"

                     "No.TN-16(59)64     New Delhi, the 16th October, 1967.

                     From: Shri M.L.Mongia

                     Additional Collector Nazul

                    

                     To

 

                     The Secretary,

                     Jheel Kurnja Cooperative Milk Producers'

                     Society Ltd.

                     325/84, Jheel Kuranja,

                     P.O. Gandhi Nagar, Delhi-31.

                     Dear Sir,

 

1.                  I am directed to inform you that the lease of agricultural land situated in Indepat and Chiragha South was granted to the Jheel Kuranja Co-operative Milk Producers' Society Ltd for a period ending June, 1961.

 

2.                  In another similar case, the Delhi Development Authority vide their Resolution No.472 dated 8.6.1967 have decided on the basis of government of India letter No.F-6/10-54-LSG dated 30.3.56 to revise the rent at the rates shown in the Schedule attached.

 

3.                  You, are, therefore, requested to deposit the arrears of rent amounting to Rs.2,71,957.48 paise in the office of the Authority within ten days of the receipt of this letter failing which I shall be constrained to take recourse to coercive measures.

 

                                                                                                        Sd/-

                                                                                          M.L.Mongia

                                                                                      Addl.Collector Nazul

                                                                  Delhi Development Authority"

 

11.                As per the society, 7729 bigha and 2 biswas of land  belonging to Delhi Improvement Trust was originally allotted.  Another 2660 bigha and 14 biswas of land belonged to U.P Land Department and was vested in the Delhi Improvement Trust for Management was also allotted.  On 20.4.1962 possession of this 2660 bigha and 14 biswa land was surrendered to U.P Land Department.  Out of 7729 bigha and 2 biswas, some land was acquired or repossessed 4380 bigha land remained with the society.

 

12.                Apprehending dispossession, the society filed a suit for declaration, mandatory and perpetual injunction to restrain D.D.A from giving effect to letters dated 16.10.1967 and from recovering the sum of Rs.2,71,957.48 claimed as arrears of rent and from prohibiting D.D.A from taking over possession of the leased land until lease is determined as per law.  Declaration sought was that order of cancellation of the lease be declared void.

 

13.                Said suit, being Suit No.326/70 was filed in the court of Sub Judge, Delhi.

 

14.                Society gave up relief of declaration.  It pressed the relief for mandatory and perpetual injunction.

 

15.                Vide judgment and decree dated 24.5.1971, the suit was dismissed.  It was held:

"6.   The record shows that in the original plaint, which was filed by the plaintiff, the relief for declaration, that the order of termination of the lease of the plaintiff is illegal and that the order for recovery of the amount on account of arrears of the lease rent is illegal was made with the consequent relief of injunction.  However, subsequently these reliefs of declarations were given up by the plaintiff by way of amendment in the plaint and after the amendment the only relief claimed by the plaintiff is for the grant of mandatory, injunction for restraining  the defendants not to give effect to the letters issued by them as regard the cancellation of the lease and for recovery of the amount on account of arrears of lease rent and from taking over the possession of the lease rent from the plaintiff and from making recovery of the amount on account of arrears of lease rent.  A perusal of the plaint makes it clear that the injunction which are claimed by the plaintiff from the court are a consequence of the declaration that the order for the termination of the lease and the order for the recovery of the amount from the plaintiff are illegal and void.  It has been specifically laid in the ruling cited AIR 1950 East Punjab 168 that where the relief of declaration has been so given up by the plaintiff, out of which the injunction flow, the suit for injunction only is not maintainable.

 

9.                  The learned counsel for the plaintiff has argued that in every suit for injunction there is some sort of declaration and in the present case the declaration claimed is that of the rights of the plaintiffs in the suit land and the injunction flows out of that.  However, in view of the authority cited above, as the relief of declaration, out of which the injunction flow, has been given up by the plaintiff, following the authority cited above, I have no hesitation to hold that the suit of the plaintiff for a simple injunction as prayed is not maintainable.  It was necessary for the plaintiff to claim he declaration that the orders are illegal and void and as the relief of declaration has already been given up by the plaintiff the suit for the simple injunction as claimed is now not maintainable.

 

11.                Admittedly no notice  as required under Section 53-B of the Delhi Development Act has been served upon the defendant for the present suit.  Under the provisions of Section 53-B of the Delhi Development Act, the service of notice is necessary for any suit against the defendant and in the absence of the service of a proper legal and valid notice, the suit is not maintainable."

 

16.                Appeal being R.F.A No.250/1971 was filed in this court challenging the judgment and decree dated 24.5.1971. On 26.7.1977, counsel for the D.D.A made the following statement in the first appeal:

"The respondent hereby undertakes not to dispossess the appellant and not to recover the amount in dispute from the appellant except under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and that the contentions which the appellants has raised and may wish to raise will be open to him in those proceedings and will not be barred by the disposal of this appeal."

 

17.                Following order was passed on 26.7.1977, disposing of R.F.A. No.250/1971:

"The finding of the trial court regarding the non-maintainability of suit for injunction for want of notice was wrong inasmuch as the learned court did not take note of the express provisions of subsection (3) of section 53-B of the Delhi Development Act, 1957.  The said finding is set aside and it is held that a suit for injunction lies if it complies with the provisions of section 53-B, referred to above.  In view of the statements of the counsel for the parties, the present appeal, however, is not pressed.  It is, therefore, disposed of as not pressed in view of the undertaking and subject to the finding given above.  The suit also will, therefore, be deemed to have been disposed of for the same reasons for which the appeal is not pressed and is disposed of.  No order for costs."

 

18.                On 20.7.1983 a notice was issued to the society by the Estate Officer as to why an order for eviction be not passed.  Matter was not adjudicated inasmuch as on 9.8.1983, the Estate Officer passed the following order:

"After recording the proceedings today, a letter No.TN.16(59)/64 dated 5/8/83 was received from the Dy. Director (Lands), DDA as such this file was called for.  It has been stated in the said letter that Jhil Kurenja Cooperative Milk Producers Society is not in possession of the land in Chiragh South since Kharif 1980.  since the society is no more in possession of the land, I hereby drop the eviction proceedings against his society."

 

19.                On 1.4.2002, interim order was passed in W.P(C) No.1947/02 directing status quo to be maintained.  On 21.10.2002 following order was passed:

"Learned counsel for the petitioner states that rejoinder had been filed.  The same is not on record.  Let the same be placed on record.  With the consent of the parties, it is clarified that the interim order of status quo shall enure to the benefit of the petitioners and occupants in cases where the petitioners had sought impleadment.

 

                     Renotify on 14.1.2003."

 

20.                Identical order was passed in W.P(C) No.3364/02.

 

21.                Alleging that society was allotted 4380 bigha and 1 biswa land in khasra Nos.2/4, 3/1 min, 16 min, 27, 31, 33, 50, 50/2, 53/2, 54/2, 55/2, 51/1, 59/1, 62/1, 41, 44, 47/2, 49/2, 57/1 and 58 min in Jheel Khurnja/Chiraga South of which it continued to be in possession through its members and inspite of order dated 21.10.2002, on 2nd and 3rd November 2002, officers of D.D.A. damaged crops and structures of following members:

1.                  Sardar Singh, S/o Shri Prabhu

2.                  Shri Nagender Singh, s/o Shri Desh Raj

3.                  Shri chand, s/o Shri Raghubir

4.                  Shri Bhagwat, s/o Shri Ram Chander

5.                  Shri Jagdish Prasad, s/o Shri Hari Ram

6.                  Shri Hari Ram, s/o Shri Fattan

7.                  Shri Jile Singh, s/o Shri Hari Ram

8.                  Shri Rajinder Singh, s/o Shri Mam Chand

9.                  Shri prem singh, s/o Shri Kishan Lal

10.                Shri Dhiranj Singh, s/o Shri Kishan Lal

11.                Shri Kamal Singh, s/o Shri Dhan Pal

12.                Shri Kanwar Singh, s/o Shri Khacheru

13.                Shri Balak Ram, s/o Shri Sukhe

14.                Shri Ami chand, s/o Shri Bansi

15.                Shri Ram Chander, s/o Shri Budhan

16.                Shri Kishore, s/o Shri Deepa

17.                Shri Bhoja Singh, s/o Shri Tejan Singh

18.                Shri Raja Ram, s/o Shri Tejan

19.                Shri Giasi, s/o Shri Niadar (Dhum Singh)

20.                Shri Rajesh Kumar, s/o Shri Jag Ram

21.                Shri Ram Chander, s/o Shri Dal Singh

Contempt Petition, Cont.Cas.534/02 was filed by the society on the premise that order dated 21.10.2002 was to enure to the benefit of all members of the society against whom eviction proceedings were initiated and society had sought impleadment in the eviction proceedings.  It has  been stated that society had  sought impleadment  in the eviction proceedings initiated against the 21 person whose crops were derstroyed.

 

22.                Defence of D.D.A is:

"5.   That in CWP No.1947 of 2002, the Hon'ble Court vide its order dated 1.4.2002 was pleased to direct the parties to maintain status-quo with respect to the land in question of the petitioners.  It is pertinent to mention that in CWP No.1947 of 2002, the society has come to the Hon'ble Court only against the impugned judgment and order dated 29.1.2002, passed by the Estate Officer-I, wherein the application of the petitioner society for impleadment in the case of DDA vs. Sh. Manoj Kumar, S.o Ram Narain and Sh. Jai Bhagwan, S/o Sh. Puran Mal bearing file No.EV/Chiraga(D) 243/94, had been dismissed.

 

6.                  That the land of Sh. Manoj Kumar, S/o Sh. Ram Narain and Sh.Jai Bhagwan, S/o Puran Mal falls in Khasra No.50/2 min and the possession of the same has not been taken by the respondents.

 

7.                  That on the hearing dated 21st October 2002, Senior Counsel for the respondent authority had sought clarification of order dated 1st April 2002 in CWP No.3364 of 2002 titled as "Jheel Khuranja Milk Producers Cooperative Society vs. DDA & Anr." since the society's grievance was against specific orders of the Estate Officer rejecting the Society's application for impleadment and order of status-quo would be applicable only in respect to the persons mentioned in the writ petition itself in para 12 of CWP No.1947 of 2002.  it was in these circumstances that this Hon'ble Court had clarified  its earlier order and order dated 21.10.2002 was passed and a copy fo the order was placed in all the four writ petitions.  It is pertinent to mention here that in the writ petition no.1947 of 2002, petitioners had restricted its prayer only in respect to the order dated 29.1.2002 passed in the case of Manoj Kumar and Jai Bhagwan, whose land has not been taken possession of by the respondents."

 

23.                Shri Sandeep Sethi, learned senior counsel for the petitioner society, arguing the writ petition urged that:

(i)                  Admittedly society, as a lessee was put in possession of  land in  village Chiraga (South) and Jheel Kurenja.  In turn, it parcelled out the land to its members.  When DDA tried to take possession by force, society filed a suit for injunction which was dismissed.  In appeal, consent order was passed on 26.7.1977.  It required DDA to evict the society by resorting to proceedings under Public Premises (Eviction of Unauthorised Occupants) Act,1971.

(ii)                 In July 1983, D.D.A initiated eviction proceedings but dropped the same vide order dated 5.8.1983 by recording that possession was already taken over.  If D.D.A chose to incorrectly record a fact and drop the eviction proceedings, the fact could not be held to be established as a finding against the society.  Claim of the society had thus to be adjudicated.

(iii)                In any case, issue of impleadment had to be decided and defended on the pleadings.  It was impermissible to treat the facts pleaded as proved facts. Counsel argued that without evidence, Estate Officer could not determine the question whether lease was validly determined.  Since individuals proceeded against claimed right of possession through the society, the society had to be impleaded.

(iv)                In reference to the impugned order where reliance had been placed by the Estate Officer on order dated 12.8.1993 passed by this Court in W.P(C) No.3797/91, Smt. Dhan Kaur vs. DDA, Shri Sandeep Sethi urged that said writ petition related to land comprised in khasra No.38/49 and 38/54, village Khureji Khas, possession whereof was handed over to the U.P Canal department on 20.4.1962 and therefore, society had no concern with said land.  Counsel urged that the society was a respondent therein.  Thus order dated 12.8.1993 had no relevance.

 

24.                Arguing the contempt petition, Shri Sandeep Sethi urged that order dated 21.10.2002 passed in W.P(C) No.1947/02 and W.P(C) 3364/02 was in rem, it applied to all such cases wherein the society had sought impleadment in proceedings for eviction initiated by D.D.A.

 

25.                Arguing for D.D.A, Shri Jagmohan Sabharwal, learned senior counsel argued that vide letter dated 16.10.1967, holding that lease had expired, D.D.A had required the society to hand over possession of the land in village Chiraga (South) and Jheel Kurenja.  Society had filed a suit, inter alia, praying for a decree of declaration that said letter be declared illegal.  Relief of declaration was given up.  D.D.A could well proceed on the basis that there was no continuing lease.  It could proceed to evict the person in actual possession.  The society had no role to play.

 

26.                On the contempt, Shri Jagmohan Sabharwal, learned senior counsel argued that order dated 21.10.2002 operated to the benefit of the 2 persons, namely Shri Manoj Kumar and Shri Jai Bhagwan named in W.P(C) No.1947/02 and the 24 noticees in respect of whom, in eviction proceedings D.D.A had sought impleadment which was declined and the orders declining impleadment were under challenge.

 

27.                Object of Order 1 Rule 10 is to bring before the court, at the same time, all persons who have an interest in the subject matter of the dispute so that separate trials are avoided and all parties are bound by the decision.  Of course, at the asking of a person he would not be impleaded.  Bona-fides of the applicant, the plausibility of the claim and genuineness of its interest in the litigation has to be prima facie shown.  But, a finding on merits as if trial has taken place has to be avoided.  A party may not be a necessary party, but may be a proper party.    A party would be a proper party if it is interested in the result of the litigation and has the right to seek assistance of the court in coming to a decision on the point in issue.  It is not necessary that a relief is asked against him.  Object is to avoid needless multiplicity of suits and to protect his interest and the interest of the party already on record.

 

28.                Whether petitioner society ought or ought not to be impleaded as a party in the eviction proceedings has to be considered in light of the fact that admittedly it was the society which was granted the lease of the land in Chiraga (South) and Jheel Kurenja.  That the lease was for 5 years and was not extended beyond 1961 is again an admitted fact.  What was the effect of non extension of the lease considering that it was for an agricultural purpose and how possession could be regained, if at all, was a matter to be decided on merits.  Vide letter dated 16.10.1967, after recording that lease of the society ended in June,1961, DDA demanded rent from the society upto 1967 in sum of Rs.2,71,957.48.  By letter of even date possession was directed to be handed over.  Society filed a suit seeking declaration that the 2 letters dated 16.10.1967 were illegal and non enforceable against it.  Injunction was sought to restrain D.D.A from taking possession till lease was determined in accordance with law.  The society gave up relief of declaration but pressed for relief of injunction.  Suit failed.  But in appeal, by consent, judgment and decree of the trial court was set aside.  D.D.A made a statement that it would not dispossess the society except under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act,1971.  D.D.A consented that society would be free to raise all contentions.  It is evident that DDA bound itself to regain possession from the society and not its members.  Possession was to be regained under provisions of the Public Premises (Eviction of Unauthorised Occupants) Act,1971.  In 1983, DDA initiated eviction proceedings against the society but abandoned the same, claiming that it had regained possession.  This was a unilateral act of DDA and it does not bind the society.  There was no adjudication.  Decision in Dhan Kuar's  case does not apply as it  related to land possession whereof was admittedly surrendered by the society.  In the instant case,  the eviction pertained to a part of land, admittedly leased to the society at some point of time.  Noticee(s) claim possession under the society.  D.D.A alleges trespass.  It cannot be said that the society is not a necessary party.  In any case, keeping in view the nature of controversy, it would certainly be a proper party. Incidentally it may be noted that  the estate  officer  has been at pains to record findings that the society  had  no right  on expire of lease.  Society is obviously affected by orders  which have been passed.   Impugned orders declining prayer of the society to be impleaded as a party are hereby set aside.

 

29.                On the issue of contempt, it is settled that not every violation of a court order constitutes contempt.  It is an intentional and deliberate violation which ensnares an act within contempt.  It was admitted at the bar by Shri Sandeep Sethi learned Senior Counsel for the society that 2 persons in WP(C) No.1947/02 and 24 persons in WP(C) No.3364/02 in respect of whose eviction notices the society had sought impleadment and rejection orders were challenged in the 2 petitions were not disturbed.  Persons disturbed are other than these 26 persons.

 

30.                Mr.Sandeep Sethi, learned senior counsel urged that order dated 21.10.2002 was clear.  It directed status quo to be maintained in cases of all occupants where the society had sought impleadment irrespective of the fact whether the society had or had not filed a petition challenging the order rejecting impleadment.  Mr.Jagmohan Sabharwal learned senior counsel for the DDA would urge to the contrary.

 

31.                Order sheet of WP(C) No.1947/2002 and WP(C) 3364/2002 would reveal that on 1.4.2002 an order of status quo was passed in WP(C) No.1947/2002. In WP(C) No.3364/2002 an order of status quo was  also passed.  There were two other similar petitions listed on 21.10.2002.  Common order came to be passed in all petitions.  It is trite that an interim order cannot travel beyond the scope of the main petition.  Prayers made in WP(C) No.1947/2002 and WP(C) No.3364/2002 are as under:-

W.P(C)No.1947/2002

 

i)                   issue a writ, order or direction in the nature of certiorary directing, commanding and requiring the respondent to quash the order dated 29.01.2002 (Annexure-P/1);

 

ii)                  issue such other writ, order or direction or writ in the nature of mandamus directing, commanding and requiring the respondent no.2 to decide the said proceedings after giving to the petitioners a fair opportunity of conducting the matter;

 

iii)                 pass such other/further order(s) as may be deemed fit and proper in the facts and circumstances of the case."

 

W.P(C) No.3364/2002

 

"i)                  Issue a writ/direction/order in the nature of certiorari quashing the judgments and orders passed by the learned Estate Officer (Annexure-P/1 Colly) by which orders the petitioner society's applications for impleadment in eviction proceedings initiated against the sub lessee members of the society have been dismissed.

 

ii)                  Issue a writ/direction/order in the nature of mandamus directing, commanding and requiring the respondent no.2 to decide the said proceedings only after giving the petitioner society a fair opportunity of hearing and contesting the matter.

 

iii)                 Issue a writ/order/direction in the nature of prohibition restraining the respondents from in any manner interfering with the peaceful use and occupation by the sub lessee members of the society of their respective plots comprised in the said land described in para 5 page 15 of the petition; and further restraining them from demolishing or disturbing the crops/nursery plants and agricultural appliances/structures erected on the said land.

 

iv)                 issue such other writ, order or direction as this Hon'ble court may deem fit and proper in the facts and circumstances of the case."

 

32.                Specific orders passed in individual cases are challenged. Challenge is restricted to the orders passed in proceedings against 2 members in WP(C) No.1947/2002 and 24 members in WP(C) No. 3364/2002.

 

33.                However, the 3rd prayer in WP(C) No.3364/2002 is wide and seeks a prohibition restraining DDA from interfering with the possession of the sub lessee members of the society in respect of the land described in para 5 of the petition i.e. 4380 bigha and 1 biswa of land.

 

34.                Since specific orders were in challenge, possibility of understanding the interim order being restricted to such of the members of he society wherein orders rejecting application of the society for impleadment were in challenge cannot be ruled out.  I accept defence of DDA that it bona-fide believed the interim orders as explained in the reply to the contempt petition.

 

35.                WP(C) No.1947/2002 and WP(C) No.3364/2002 are allowed, in that the impugned orders are set aside.  Mandamus is issued to the estate officer to implead the society in the 25 eviction cases pertaining to Shri Manoj Kumar and Shri Jai Bhagwan and 24 persons named in para 18 of WP(C) No.3364/2002 and redecide the matter.  In view of prayer III in WP(C) No.3364/02 similar  direction is issued in all other  eviction proceedings  wherever society  has sought impleadment.  Notice in the contempt petition is discharged.

 

36.                No costs.

 

             PRADEEP NANDRAJOG, J.