High Court of DelhiCM(M)/875/2015

Madan Mohan v. Kuldeep Singh & ANR.

2016-12-05Hon'Ble Mr. Justice Manmohan30 pages

$~11 CM(M) 875/2015 MADAN MOHAN ..... Petitioner Mr. Ravi Gupta, Sr. Adv with Mr.

Sachin Jain, Mr. Ronit Rana and Mr.

Rajiv Bajaj, Advs.

KULDEEP SINGH & ANR.

..... Respondents Mr. Sudhir Nandrajog, Sr. Adv with Mr. J.K. Jain, Adv.

Review Petition No. 277/2016 This review petition seeks a review of the order dated 26.04.2016. It is premised largely on the submission that this order noting that no document had been filed by the review petitioner along with his application under Order 1 Rule 10 of the Code is an incorrect fact; it has also incorrectly noted that on 17.08.2015, this document had been rejected by the Trial Court. Submission being that the review petitioner along with his application under Order 1 Rule 10 of the Code had filed the document (Form ST-3 Gulati Sports); this was on 11.02.2015; this document had accompanied his application under Order 1 Rule 10 of the Code. On 11.08.2015, a better copy of this document (Form ST-3 Gulati Sports) had been filed. This document had been rejected on 17.08.2015. The earlier document (illegible Review Petition No. 277/2016

document) had not been rejected. This finding of fact had been incorrectly noted in the impugned order. This calls for a review. Per contra, learned counsel for the non-applicant submits that the order under review does not call for any interference as facts have been correctly recorded.

This Court notes that the order dated 26.04.2016 had set aside the order passed by the Trial Judge vide which the Trial Judge had permitted M/s Gulati Sports to be impleaded as a party. This Court while passing its order on 26.04.2016 had noted that M/s Gulati Sports (through its partner D.S. Gulati) is neither a necessary and nor a proper party in proceedings under Section 14 (1)(e) of the DRCA. At best a right would be available to him under Section 25 of the DRCA. This Court had correctly noted that his application under Order 1 Rule 10 of the Code had been un-accompanied by any document as the document filed by the petitioner on 11.02.2015 (along with his application under Order 1 Rule 10 of the Code) was wholly illegible and it was for this reason that on a subsequent dated i.e. 11.08.2015, he had chosen to file a better copy of the said document. This better copy had not been taken on record; it was rejected by a speaking order on 11.08.2015. Thus this Court notes that the order passed by this Court on 26.04.2016 has not gone wrong in recording any fact.

At this stage, the Court has asked the review petitioner that if he wishes to get his petition under Section 25 of the DRCA adjudicated upon this Court may observe that the said petition will be Review Petition No. 277/2016

dealt with uninfluenced by any observation made by this Court in its order dated 26.04.2016. The learned senior counsel appearing for the review petitioner (under instructions from his client) submits that he does not wish to accede to this proposal; he wishes that an order be passed on merits.

At this stage, this Court also notes that the review petitioner had also impugned an order dated 25.05.2016 (relating to an adjacent shop) vide which the application of M/s Gulati Sports under Order 1 Rule 10 of the Code had been dismissed by the ARC. The coordinate Bench of this Court while dismissing the plea of M/s Galati Sports to be impleaded under Order 1 Rule 10 of the Code in separate proceedings under section 14(1)(e) of the DRCA had noted the order passed by this Court on 26.04.2016. That Bench (in C.M. (Main) No.815/2016) while disposing of that petition had granted liberty to the petitioner/M/s Gulati Sports to take recourse to proceedings under Section 25 of the DRCA in case any order of eviction is passed against Sh. D.S. Gulati.

This Court is of the view that if this review petition is allowed, it would also ineffect set at naught the order passed by the coordinate Bench on 23.08.2016 in C.M. (Main) No.815/2016. The grounds of review are contained in Order XLVII of the Code. Unless and until, there is an error apparent on the face of the record or a new fact or piece of evidence is brought on record which was not within the knowledge of the review petitioner at the Review Petition No. 277/2016

time when the impugned order was passed, this Court may not in its discretion pass any order on the review petition. Review petition is without any merit. Dismissed with costs quantified at Rs.10,000/-.

Review Petition No. 277/2016

$~15 W.P.(C) 7325/2016 INDER DUTT SHARMA ..... Petitioner None.

NORTH DELHI MUNICIPAL CORPORATION & ORS ..... Respondents Ms. Monika Arora, Standing Counsel for the NDMC.

C.M. No.44924/2016 (Exemption) Exemption is allowed subject to just exceptions. Application disposed of.

C.M. No.44923/2016 The applicant/NDMC is seeking a recall of the order dated 19.08.2016 for the reasons as mentioned in the application. Her submission is that the Counsellor who had put forth the proposal for re-naming the gate at Pandit Devi Sharma Dwar has mis-used the letterhead of the Counsellor and in fact the recommendation letter did not bear the signatures of the Counsellor; it is for this reason that the recall of the order had been sought for.

Notice of this application be issued to the non-applicant on the applicant taking effective steps by ordinary process, speed post as also though courier returnable for 02.02.2017.

$~16 W.P.(C) 11444/2016 JYOTI RAO ..... Petitioner Mr. Akash Vajpai and Mr. Vishnu Kant, Advs.

SOUTH DELHI MUNICIPAL CORPORATION & ORS ..... Respondents Mr Kapil Dutta for Ms. Pooja Kalra, Adv for the SDMC.

C.M. Nos.44873-74/2016 Exemption is allowed subject to just exceptions. Applications disposed of.

W.P.(C) 11444/2016 The petitioner is aggrieved by the inaction on the part of the statutory authorities; his submission is that illegal and unauthorized construction is being permission on public street of Mahatama Gandhi Marg, Raj Nagar-II, Palam Colony which is causing a huge hardship to the residents of that area.

Notice of this petition has been accepted by learned counsel for respondent No. 1. Notice of this petition be issued to respondents No. 2 to 5 on the petitioner taking effective steps by ordinary process, speed post as also though courier.

Counter affidavit be filed by the served respondent within four weeks with advance copy to the learned counsel for the petitioner who may file rejoinder before the next date.

Renotify on 17.03.2017. Long date has been given at the request of the petitioner.

$~19 W.P.(C) 11484/2016 & C.M. No.45124/2016 MIHREEN ..... Petitioner Ms. Seema Singh and Mr. Ravinder Kumar, Advs.

NORTH DELHI MUNICIPAL CORPORATION & ORS ..... Respondents Mr. Sanjeev Sabharwal, Standing Counsel for the NDMC.

The petitioner is aggrieved by the illegal and unauthorized construction which has been carried at property No. 1853, Gali Pattey Wali, Suiwalan, Delhi. Submission is that this is against all the byelaws of the Corporation. On advance notice, learned counsel for respondent No. 1/North Delhi Municipal Corporation has put his appearance. He apprises the Court that the private respondent namely Attahullah (respondent No.3) has approached the ATMCD against the demolition order which has been passed by the Corporation against this property. This is reflected in the order dated 27.05.2016 passed by the ATMCD. Copy of that order has been placed on record. Learned counsel for respondent No. 1 points out that this order has directed the parties to maintain status-quo and the respondent Corporation has been asked

not to take any coercive action against this property in question. This is also reflected in the order dated 27.05.2016 which is a part of the record.

In this view of the matter, this Court is of the view that this petition is not maintainable at this stage but all actions in accordance with the directions to be passed by the ATMCD will be taken by the Corporation. This satisfies the case of the petitioner as well. She does not press this petition.

Petition disposed of.

$~20 W.P.(C) 11491/2016 & C.M. No.45131/2016 AMARJEET SINGH ..... Petitioner Mr. M.S. Bammi and Ms. Lalima Parashar, Advs.

THE COMMISSIONER ,SOUTH DELHI MUNICIPAL CORPORATION AND ORS ..... Respondents Mr. Rakesh Mittal, Standing Counsel with Ms. Kamlesh Anand and Ms.

Yamini Mittal, Advs for respondent No. 1 & 2 The case of the petitioner is that illegal and unauthorized construction is being permitted at property bearing No. S-221/133, Gali No.s 4 & 5, S-Block, Vishnu Garden, New Delhi. The case of the petitioner is that he along with respondents No. 3 & 4 had entered into a collaboration agreement sometime in December, 2015 to construct this property. Disputes had arisen. Admittedly a suit had been filed by the petitioner against private respondents i.e. respondents No. 3 & 4 which is pending before the concerned Court since October, 2016.

At the outset, learned counsel for respondent No. 1/SDMC has put his appearance. His submission is that the petitioner himself

being guilty for the illegal perpetuated by the Corporation cannot approach this Court. On this count, learned counsel for the petitioner submits that a kachha plan had been handed over to him and he was under a bonafide impression that the site plan had been duly sanctioned qua this property which was not the correct and honest picture. He has been duped into this collaboration agreement. Be that as it may, further submission of the learned counsel for the respondent is also noted which is to the effect that no representation to the said effect has been made before the Corporation. This petition be treated as representation on behalf of the petitioner and the same shall be answered by the respondent Corporation in accordance with law within an outer limit of six weeks from the date of the receipt of the order.

Petition disposed of.

Order dasti.

$~2 W.P.(C) 8127/2016 SHAMIMUDDIN ..... Petitioner Mr. N.S. Vashisht and Mr. Vishal Singh, Advs.

NORTH DELHI MUNICIPAL CORPORATION & ANR.

..... Respondents Mr. Kapil Dutta, proxy counsel, C.M. No.33625/2016 (Exemption) Exemption is allowed subject to all just exception. Application disposed of.

W.P.(C) 8127/2016 Learned counsel for the petitioner has not placed on record his application vide which he had sought sanction of his building plan. Let the said application be placed on record. Copy has been furnished to the learned counsel for the respondent. Learned counsel for the respondent in fact submits that that application is under process and as and when the petitioner deposits his building plan fee, his plan will be considered for a sanction. This payment will be made on-line by the petitioner.

Learned counsel for the respondent also seeks time to file a counter affidavit/status report. Needful be done within three weeks

with advance copy to the learned counsel for the petitioner who may file rejoinder before the next date.

Renotify on 03.02.2017.

$~4 W.P.(C) 6023/2013 ANANT RAJ PROJECTS LIMITED ..... Petitioner Mr. Rohit K. Aggarwal, Adv.

OFFICE OF THE EXECUTIVE ENGINEER (BUILDING) NORTH DELHI MUNICIPAL CORPORATION ..... Respondent Mr. Ajay Arora, Mr. Kapil Dutta, Ms.

Surbhi Gupta and Ms. Diksha Lal, Advs for NDMC.

Mr. Rajiv Bansal, Ms. Pallavi, Ms.

Arpita and Ms. Uma Lohray, Advs for the DDA.

C.M. Nos 40660/2016 (for amendment) and 40661/2016 (interim relief) Reply is stated to have been filed. It is not on record. Copy be furnished to the petitioner and non-applicant. The said reply be placed on record. Learned counsel for respondent/NDMC points out that connected petitions are listed before this Court on 11.01.2017. List on 11.01.2017.

$~7 W.P.(C) 5173/2016 & C.M. No.21541/2016 RESIDENTS WELFARE ASSOCIATION F BLOCK ..... Petitioner Mr. Rohan Thawani, Adv.

SOUTH DELHI MUNICIPAL CORPORATION & ORS ..... Respondents Mr. V.P. S. Charak and Ms. Shubhra Parashar, Advs for R-1.

Mr. Anuj Aggarwal, ASC with Mr. D.

Mukherjee, Adv for R-2.

Respondent No.3 has not been served. Process fee was not filed. Last opportunity is granted to the petitioner to serve respondent No.3. Counter affidavit has not been filed by respondent No. 1 & 2. Respondent No. 1 & 2 will file their counter affidavit positively within two weeks with advance copy to the learned counsel for the petitioner who may file rejoinder before the next date. Renotify on 10.02.2017.

$~8 W.P.(C) 6323/2016 JAI GOPAL GULATI ..... Petitioner Mr. Sanjeev Narang, Adv.

UNION OF INDIA AND ORS ..... Respondents Mr. Chiranjiv Kumar, Adv for R-1.

Ms. Niharika Ahluwalia, Adv for R-2.

Respondent No. 2 seeks time to file counter affidavit. The same shall be filed positively in four weeks. Respondents No. 3 to 5, inspite of service, has not chosen to file their counter affidavits. Notice of default be issued to the Standing Counsel of respondents No. 3 to 5. Counter affidavit be obtained from the said respondents positively in four weeks with advance copy to the learned counsel for the petitioner who may file rejoinder before the next date. Renotify on 13.02.2017.

$~12 C.R.P. 101/2016 & C.M. No.25378/2016 MONIKA ..... Petitioner Ms. Amit Shukla and Mr. Shakti Vardhan, Advs.

AMIT SABHARWAL ..... Respondent Mr. Digvijay Kumar, Adv.

Reply has not been filed by the respondent. It is stated that the reply is ready and the same shall be filed within three days. Copy be furnished to the learned counsel for the petitioner who may file rejoinder before the next date.

Renotify on 08.02.2017.

$~13 CM(M) 1347/2010 & C.M. No.12584/2014 RAM NARAIN & ORS ..... Petitioners Mr. J.P. Sengh, Sr. Adv with Mr. Raj Kumar Sharma, Mr. Vp.P. Singh and Ms. Manisha Mehta, Advs UNION OF INDIA & ORS ..... Respondents Ms. Jyoti, Adv. for R-1 Ms. Shobhana Takiar, Adv for the DDA.

Reply has not been filed by respondent No. 1 or respondent No.

2. Learned counsel appearing for respondent No. 1 submits that inspite of best efforts, since the records are not traceable in their Department, it may not be possible for them to file counter affidavit/response. She submits that she has instructions to argue the petition on the next date.

Meanwhile, one more last opportunity is granted to respondent No. 2 to file counter affidavit. Needful be done within two weeks with advance copy to the learned counsel for the petitioners who may file rejoinder before the next date.

List for arguments on 17.02.2017.

$~14 CM(M) 1348/2010 & C.M. No.12614/2014 RAM NARAIN & ORS ..... Petitioners Mr. J.P. Sengh, Sr. Adv with Mr. Raj Kumar Sharma, Mr. Vp.P. Singh and Ms. Manisha Mehta, Advs UNION OF INDIA & ORS ..... Respondents Ms. Jyoti, Adv. for R-1 Ms. Shobhana Takiar, Adv for the DDA.

Reply has not been filed by respondent No. 1 or respondent No.

List for arguments on 17.02.2017.

$~18 CM(M) 1240/2016 & C.M. Nos.44314-15/2016 DINESH PUNYANI ..... Petitioner Mr. Rashmi Bansal, Mr. Anuj Gupta and Mr. Pinki Aggarwal, Advocates RITIKA ..... Respondent None Petitioner is seeking early hearing in the matter. He is aggrieved by the fact that dated of 24.04.2017 had been given by the learned Family Court Judge.

Notice of this petition be issued to the non-applicant / respondent. Report of the learned Family Court Judge also be called. List on 14.02.2017.

$~10 RC.REV. 374/2015 VINOD KUMAR & ANR ..... Petitioners Dr. Lalit Bhasin, Mr. Sanjay Gupta and Mr. Mudit Sharma, Advocates AJAY KUMAR SINGHAL ..... Respondent Mr. Dinesh Kumar Gupta, Advocate REV. PET. NO. 307/2016 Rejoinder now be filed before the next date.

List on 14.02.2017.

$~6 W.P.(C) 7389/2015 RUSTAM BEG (DECEASED) THR LRS ..... Petitioner Mr. Rahul Srivastava, Advocate THE ESTATE OFFICER & ORS.

..... Respondents None W.P.(C) 7389/2015 and CM APPL. No. 13613/2015 Petitioner is aggrieved by the order passed by the learned District Judge dated 23.12.2014. This is an interim order passed by the learned District Judge in pending proceedings under section 9 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971. That appeal is yet pending before the learned District Judge and the next date fixed before him is 23.01.2017.

Petitioner has confined himself only to that part of the order where his right to cross examine two witnesses namely one Balbir Singh and K.C. Surinder had been denied to him. The statement of Sh. Balbir Singh, Deputy Director- Allotment (Slum & JJ Deptt. MCD) was recorded on oath on 02.02.2010 and statement of Shri K. C. Surinder, Deputy Director, Commercial Estate, DDA was recorded on the subsequent date i.e. 22.04.2010. Both these witnesses were not cross examined. Counsel for the petitioner submits that he was not permitted to do so. He had moved an application on 07.05.2010 (on

record) seeking permission of the Court to cross examine these witnesses. The impugned order had declined this prayer. This Court is of the view that under provisions of Indian Evidence Act the statement of a witness which has been recorded on oath must be tested by cross examination. This is a right which has been prescribed by the Legislature. The Trial Court declining this right to the petitioner has committed an illegality. Even presuming that these witnesses were only formal in nature and do not affect the defence sought to be set up by the petitioner this Court is nevertheless of the view that the petitioner has a right to cross examine the said witnesses.

Accordingly, the said witnesses be summoned by the learned Trial Court for a date to be fixed for their cross examination. It is made clear that only one opportunity shall be granted to the petitioner for the said purpose as vehement contention of the non-applicant/ respondent is that the petitioner is only trying to delay the proceedings. Trial Court shall not give any unnecessary adjournment in this regard.

Any other document which the petitioner chooses to rely may be applied under the provisions of Right to Information Act. No further orders are called for.

Petition disposed of.

$~5 W.P.(C) 5838/2014 SUJATA MALHOTRA ..... Applicant None SOUTH DELHI MUNICIPAL CORPORATION & ORS.

..... Respondents Mr. Mukesh Gupta, Standing Counsel for SDMC along with Mr. Praney Jain, Advocate Mr. Amit Singh, Advocate for R-3 to R-5 CM APPL. No. 20089/2016 (Release of amount) None has appeared for the applicant.

Matter has been called twice.

Dismissed in default as also for non-prosecution. gb

$~3 W.P.(C) 3715/2012 and CM APPL. No. 7791/2012 BSES RAJDHANI POWER LTD.

..... Petitioner Mr. Anupam Varma, Mr. Nikhil Sharya and Mr. Rahul, Advocates SUPERINTENDING ENGINEER PROJECTS MCD & ANR.

..... Respondents Mr. Anuj Aggarwal, ASC for GNCTD with Mr. Niti Jain, Advocate Pleadings are complete.

None has appeared on behalf of respondent no. 1. At this stage, counsel for the petitioner submits that he has to file certain documents to substantiate his averments which he had made in this petition which as per him relates to the shifting/reallocation charges which as per him are to be borne by the land owning / road owning agency which in this case is respondent no.1/ SDMC.

Let the said documents be placed on record by way of affidavit. Needful be done within a period of two weeks. List on 10.02.2017.

$~1 W.P.(C) 8070/2016 DR. NATHU LAL ..... Petitioner Petitioner in person UNION OF INDIA & ORS ..... Respondents Mr. Jaswinder Singh, Advocate Petitioner is aggrieved by the order passed by the learned District Judge dated 12.08.2016 under section 9 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. His appeal against the order passed by the Estate Officer had been dismissed. He had been directed to vacate the government accommodation which was quarter no. 119, Type-4, Laxmi Bai Nagar, New Delhi. Admittedly petitioner is retired from service on 30.11.2015. At this stage petitioner submits that he has been forcibly evicted from the quarter on 01.12.2015; this does not find mention in the entire body of the petition.

Learned counsel for the respondent submits that the petition in these circumstances would not be maintainable and the petitioner would have to approach another fora for getting his grievance

addressed.

Counsel for the petitioner is not available today. At request list on 07.02.2017 for consideration. gb

$~17 CM(M) 1249/2016 & C.M. No.44885/2016 GAURAV ARORA ..... Petitioner Petitioner in person KUMKUM SHARMA & ANR ..... Respondents None Petitioner appears to be aggrieved by the orders passed by the learned Family Court Judge. He is particularly aggrieved by the order passed on 05.10.2016 vide which his application seeking transfer of the proceedings to another Court had not been considered sympathetically. That application is yet pending before the learned Family Judge. The second grievance of the petitioner as emanates from the prayer made in this petition is that his application under Section 24 Hindu Marriage Act has not been decided. Learned petitioner (arguing in person) submits that admittedly there are no substantive proceedings pending before the learned Family Court Judge. Petition under section 9 of the Hindu Marriage Act filed by the estranged wife had been withdrawn on 23.10.2015. The Bench of this Court (in CM No. 1228/2015) had noted that the right of the wife / respondent to withdraw her petition under section 9

of the HMA cannot be interfered with and at best the petitioner could have pressed for costs.

This Court is of the view that since there are no substantive proceedings pending under the provisions of Hindu Marriage Act, the application under Section 24 would not be maintainable. Petitioner seeks time to satisfy this Court on this proposition. List on 01.02.2017.

$~9 CM(M) 1092/2016 and CM APPL. No. 40040/2016 SHEETAL MALHOTRA ..... Petitioner Mr. Govind Singh, Advocate SUMIT BHARARA ..... Respondent None Respondent has been served at his Canadian address through courier. He was not served at his Delhi address; it was noted that the respondent was currently in Canada. This Court is of the view that respondent be served through his e-mail as well. Petitioner shall file an affidavit of the e-mail address of the respondent. List on 08.02.2017.