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2005 DIGILAW 466 (HP)

VIJAY SINGH v. STATE OF H. P.

2005-12-09

SURJIT SINGH, V.K.JHANJI

body2005
JUDGMENT V.K. Jhanji, J. - This shall dispose of application under Section 151 CPC for recalling of order dated November 7, 2005 passed in CWP 886 of 2003. 2. At the outset, we may say that not only the application for recalling order dated November 7, 2005 in CWP 886 of 2003, is an abuse of the process of the Court, but CWP 886 of 2003 too was an abuse of the process of the Court. CWP 886 of 2003 was heard by Division Bench of which I was one of the Members on November 7, 2005. Learned Counsel for the petitioner argued for nearly an hour and after hearing the other Counsel, and on meticulously going through the record of the writ petition, the Bench was of the considered view that the writ petition is nothing but an abuse of the process of the Court and when we were about to dismiss the same with costs of Rs. 40,000/-, learned Counsel for the petitioner Shri Rajiv Sharma, Senior Advocate, in order to save the petitioner from heavy costs, made a statement to withdraw the writ petition. In the light of the statement made by the learned Counsel for the petitioner, following order was passed by the Bench: "Learned Counsel for the petitioner states that writ petition may be dismissed as withdrawn. Order accordingly. However, while permitting the petitioner to withdraw the writ petition, we direct all the authorities concerned including Municipal Corporation and the Electricity Department to grant immediately electricity connection as well as water connection to respondent No. 4 so that he can enjoy his property." 3. The present application is dated November 20, 2005, but appears to have been filed in the Registry on November 23, 2005. It was listed before us on December 7, 2005, when we adjourned it for December 8, 2005. The present application has not been filed by the original Counsel in the writ petition, but has been filed by some other Counsel. Since I was one of the Members of the Bench, I narrated to the Counsel as to what had transpired on the day when the writ petition was dismissed, but the Counsel insisted to argue the matter on merits. Since I was one of the Members of the Bench, I narrated to the Counsel as to what had transpired on the day when the writ petition was dismissed, but the Counsel insisted to argue the matter on merits. As one of us (Surjit Singh, J.) was not Member of the Bench which passed order dated November 7, 2005 in CWP 886/ 2003, we permitted the Counsel for the petitioner to argue the writ petition on merits. 4. We have heard the learned Counsel for the petitioner once again for more than an hour and also the Municipal Corporation and respondent No. 4. 5. The facts of the case are that writ petitioner Kanwar Vijay Singh and Rani Chander Kanta, wife of late Raja Dhyan Singh and one Kanwar Padam Singh were the owners of Khasra No. 233/C/8 old and new No. 983, measuring 218.00, situate in Chhota Shimla, H.P. Petitioner along with other two co-owners sold the said plot in favour of one PS. Verma vide registered sale deed dated 28.12.1977. On purchase of the plot, P.S: Verma applied to the Director, Town & Country Planning Department for the grant of permission to construct house on the said plot. His application for approval of the proposed site plan was forwarded to the Secretary, Town and Country Planning on 27.2.1992. The Government of H.P. granted approval to the construction of proposed building plan vide letter dated 12.5.1993. It appears that before P.S. Verma could raise construction, some proceedings were initiated against him by the petitioner and P.S. Verma, probably in order to save himself from the harassment, sold the property to respondent No. 4 through his Power of Attorney vide sale deed dated 3.8.1999. After purchase of the said property and on having become lawful owner of the same, respondent No. 4 submitted building plan of four storey(s) on the plot, but on the objection raised by the Municipal authorities, he submitted a fresh plan in his own name for raising parking and two storey(s). Before the plan could be sanctioned, respondent No. 4 was informed by his Architect Sh. D.R. Panwar that the State Government has issued instructions to the effect that the Plans approved prior to 25.7.2000 would be sanctioned by the competent authorities and the ban on the construction put in the area in question will not bar the sanction of such plan. D.R. Panwar that the State Government has issued instructions to the effect that the Plans approved prior to 25.7.2000 would be sanctioned by the competent authorities and the ban on the construction put in the area in question will not bar the sanction of such plan. As already noted earlier, P.S. Verma had already got a plan sanctioned for raising the construction on the plot purchased by respondent No. 4 on 12.5.1993. Respondent No. 4 being lawful purchaser of the property was entitled to get benefit of such sanction. It appears that Shri D.R. Panwar, Architect who had been engaged by the petitioner had no knowledge of the death of P.S. Verma, who seems to have died sometimes in the year 2000, made an application to the Municipal Corporation in the name of Sh. P.S. Verma on the bona fide assumption that respondent No. 4 who had submitted fresh plan for raising construction on the plot in his own name, is legally entitled to take such benefit by moving such application to the Municipal authorities. Be that as it may, Municipal Corporation, in response to the application submitted by the petitioner for constructing house on the plot in question, granted sanction and vide communication 24.7.2002, petitioner was informed of approval of his plan and grant of sanction by the municipal authorities under the Municipal Corporation Act, 1994. 6. On obtaining sanction for the construction of the house, when respondent No. 4 started raising construction as per the approved plan, petitioner along with Rani Chander Kanta, wife of late Raja Dhyan Singh filed Civil Suit No. 100-1 of 2002, dated 24.12.2002 for perpetual, permanent prohibitory injunction restraining the defendant No. 1 from effecting or carrying on any type of building construction beyond or in excess of land comprised in Khasra No. 233/C/8 measuring 204 Sq. yards + 2 Sq. ft. located in Up Mohal, Chhota Shimla, Mauza Station Ward, Tehsil and District Shimla. Municipal Corporation was impleaded as defendant No. 2 and a mandatory injunction was sought directing it to perform its legal duties by directing it to have the illegal construction being undertaken by defendant No. 1 stopped and also demolish the unauthorized construction already effected by defendant No. 1 (respondent No. 4 herein). Municipal Corporation was impleaded as defendant No. 2 and a mandatory injunction was sought directing it to perform its legal duties by directing it to have the illegal construction being undertaken by defendant No. 1 stopped and also demolish the unauthorized construction already effected by defendant No. 1 (respondent No. 4 herein). In the plaint, petitioner alleged that respondent No. 4 has encroached upon some land belonging to him which was in excess of the one sold to P.S. Verma, who in turn had sold to respondent No. 4. In para 8 of the plaint, petitioner alleged that the construction raised by respondent No. 4 is not as per the sanctioned plan and proper set backs have not been left as envisaged by Municipal Rules and Bye-laws. It was also alleged that the so called sanction plan was wholly illegal, as the same was got passed on the Special Power of Attorney executed by P.S. Verma in favour of one Ashok Kumar and the said Power of Attorney was null and void, as P.S. Verma had died. Along with the suit, petitioner filed application under Order XXXIX Rules 1 and 2 CPC for grant of temporary injunction restraining respondent No. 4 from raising construction over the plot which he had purchased from P.S. Verma. Respondent No. 4 contested the suit and also the application and vide the detailed order dated 18.1.2003, Senior Sub-Judge, Shimla dismissed the application. The findings recorded by the learned Senior Sub-Judge in para 7 of the order being relevant, are reproduced as under: "7. First of all I would like to point out that along with their main suit/application under Order 39 Rule 1 and 2 CPC, the applicants have not filed the copy of latest Jamabandi. It has also not been made clear by the applicants as to what is the khasra No. of their Estate known as Springfield Estate Chhota Shimla and that on which side of this Estate the respondent has encroached upon or threatening to make encroachment. Or the other hand, respondent has brought on record the copy of Jamabandi for the year 1997-98 and also the original sale deed as per which he had purchased land comprised in khasra No. 983 measuring 218 sq. meters from Sh. Parkash Shankar through his Special Attorney Sh. Ashok Kumar. A copy of Aks Tatima has also been filed for the perusal of this Court. meters from Sh. Parkash Shankar through his Special Attorney Sh. Ashok Kumar. A copy of Aks Tatima has also been filed for the perusal of this Court. In the aforesaid Jamabandi for the year 1997-98, Parkash Shankar has been recorded to be the owner in possession of khasra No. 983 measuring 218, the nature and classification of which has been mentioned as "Jai Safed". On the basis of the entries in the said Jamabandi he had sold said khasra No. 983 measuring 218 sq. meters to the respondent (Akshay Doegar) and on the basis of sale deed so effected, mutation No. 82 was also attested and sanctioned on 13.8.99 as is evident from the remarks column of this Jamabandi. It has not been challenged by respondent No. 2 (M.C.) that the respondent is making construction on khasra No. 983 without getting sanctioned the plan or that the construction being raised by him is not in accordance with Municipal Rules and bye laws. In fact, till the date on which arguments were heard on this application i.e. 16.1.2003, the respondent No. 2 had not filed either written statement to the plaint of the plaintiffs or the reply to their application under Order 39 Rules 1 and 2 CPC. From the mere fact that the applicants have made an application to the settlement authorities for giving demarcation it is not justified that respondent should be restrained from either raising construction on the land which was purchased by him i.e. khasra No. 983 or that he should be directed to maintain status quo qua raising of construction as exists today i.e. the date of this order, till the settlement authorities give demarcation. Doubtless, that for the applicants it has been argued that a prima facie case exists in their favour but from the allegations made in the plaint as well as this application, no prima facie case appears to be made in their favour particularly for the reason that even they have not stated before this Court as to what is the khasra Number of their Estate and that on which portion of it, the respondent is threatening to make encroachment. I would further like to point out that balance of convenience also does not lie in their favour for the reason that they have not brought any such cogent material before this Court which may go to show that respondent has either encroached upon their land or threatening to do so. On the contrary, respondent has got sanctioned the plan of his proposed construction from the concerned authorities and further that he is raising the construction on the land which he had purchased, comprising khasra No. 983 measuring 218 sq. meters as per revenue record i.e. copy of Jamabandi for the year 1997-98. It is true that presumption of truth attached to the entries in the record of rights is not conclusive and that the same can be rebutted by cogent and reliable evidence but at present there is no material which may go to suggest that area of khasra No. 983 as mentioned in the said Jamabandi is incorrect and not as per the factual position. Thus, if the respondent is either restrained from raising construction on the land so purchased by him and that an order is passed to maintain status quo in respect of construction, he will suffer more inconvenience as compared to the applicants. In other words, it can be said that the balance of convenience lies not in favour of the applicants but in favour of the respondent who is a bona fide purchaser for consideration of land measuring 218 sq. meters comprised in khasra No. 983. The applicants have further not succeeded in satisfying this Court that they are likely to suffer any such injury/loss which cannot be compensated in terms of money if the respondent is not restrained from raising construction. I have already observed and pointed out that the applicants have not even filed the copies of latest revenue record along with their plaint/this application for temporary injunction. Unless or until the applicants succeed in establishing that the entries qua area of khasra No. 983 in the Jamabandi for the year 1997-98 are illegal and not as per the factual position, the respondent cannot be restrained by way of temporary injunction from raising construction over the said land. Unless or until the applicants succeed in establishing that the entries qua area of khasra No. 983 in the Jamabandi for the year 1997-98 are illegal and not as per the factual position, the respondent cannot be restrained by way of temporary injunction from raising construction over the said land. Thus I further hold that applicants have not succeeded in establishing that there are chances of their suffering irreparable loss/injury which can not be compensated in terms of money if temporary injunction is not granted in their favour. Consequently, for my above discussion, I hold that they are not entitled for the relief of temporary injunction and accordingly my answer to this point is in no." 7. Petitioner having failed to get relief from the Court of Senior Sub-Judge started writing to various authorities including the Commissioner, Municipal Corporation, Shimla, the Chief Minister, Himachal Pradesh etc., alleging therein that respondent No. 4 has obtained permission and sanction for raising construction of house on the plot in question from the authorities concerned by making material misrepresentation and fraudulent statements. He demanded that criminal proceedings be initiated against respondent No. 4 for fraud and deceit committed to him. In letter dated October 20, 2003 to the Chief Minister, petitioner stated that respondent No. 4 abused and threatened him with dire consequences if he raised complaints against his illegal construction. He demanded that action be taken against all concerned. 8. It appears that petitioner was not able to get any fruitful response from the said authorities and so on 31.10.2003 he filed CWP 886 of 2003 in this Court, again alleging therein that P.S. Verma from whom respondent No. 4 had purchased the plot had died on 3.4.2000, but an application was made on his behalf for approval of building plans, though application was required to be made in the name of respondent No. 4. In the writ petition, he accordingly sought quashing of the permission which had been granted to respondent No. 4 for raising construction. He further sought that construction raised by respondent No. 4 on the plot be demolished after declaring the same to be unauthorized. In the writ petition, he accordingly sought quashing of the permission which had been granted to respondent No. 4 for raising construction. He further sought that construction raised by respondent No. 4 on the plot be demolished after declaring the same to be unauthorized. In the writ petition, petitioner did not make even a whisper in regard to his filing of the suit with the Senior Sub-Judge, nor in regard to the order which the Senior Sub-Judge had passed on 18.1.2003, dismissing his application under Order XXXIX Rules 1 and 2 CPC. 9. In response to the notice in the writ petition, respondents filed their replies. Municipal Corporation specifically averred that approval of the Government was made firstly in favour of P.S. Verma in the year 1993, much before his death and the property in question was also transferred in favour of respondent No. 4 in the year 1999, that too much before his death and respondent No. 4 having stepped into the shoes of P.S. Verma, sanction was granted in his (respondent No. 4s) favour to raise construction on the plot. Respondent No. 4, in his reply, filed copy of the plaint which the petitioner had filed in the Court of Senior Sub-Judge, Shimla and the order passed on application under Order XXXIX Rules 1 and 2 CPC and also sanction letter which respondent No. 4 had received granting sanction to raise construction over the plot. 10. It deserves to be mentioned at this stage that the writ petition was filed on 5.11.2003, but it appears that though an application was filed for obtaining an interim order, but since no interim order was passed, petitioner filed another Civil Suit No. 123/1 of 2004 on 21.12.2004, impleading the Commissioner and the Municipal Corporation as parties to the suit and in the said suit, he sought relief of permanent injunction, restraining the defendants therein from granting/connecting civic amenities like water etc. to the building constructed on plot bearing Khasra No. 233/C/8 (Settlement No. 983), situated at Spring Field Estate, Chhota Shimla. In the suit, relief sought for was against the building raised by respondent No. 4, but respondent No. 4 was not made party to the said suit. to the building constructed on plot bearing Khasra No. 233/C/8 (Settlement No. 983), situated at Spring Field Estate, Chhota Shimla. In the suit, relief sought for was against the building raised by respondent No. 4, but respondent No. 4 was not made party to the said suit. Petitioner also did not make any mention in regard to his filing of earlier suit, nor of the civil writ petition and by suppression of material facts, was he able to obtain an order of status quo qua the release of civic amenities to the building belonging to respondent No. 4. 11. From the narration of the above facts, we find that the conduct of the petitioner in approaching one forum/authority or the other, without disclosing the true facts and by taking one plea or the other clearly demonstrates that proceedings initiated by him were nothing but to harass respondent No. 4 and were clearly abuse of the process of the Court. It has come in the reply of respondent No. 4 that petitioner after selling various plots of Spring Field Estate, Chhota Shimla, including the plot in dispute, realized that the value of the property has gone up by the lapse of time, started initiating all possible actions against the persons to whom he along with his co-owners had sold the plots. Respondent No. 4 has brought on record that the present petitioner through his son Ajay Singh filed a suit for declaration in regard to plot sold to one Sudesh Sood and Rajiv Sood and others, challenging the sale made by petitioner in their favour and the said suit was dismissed being devoid of any merit. Appeal which was preferred against dismissal of the suit was likewise dismissed as withdrawn, being without merit. Petitioner had sold two other plots to late Sh. S.S. Kanwar, retired District Judge and Smt. Savitri Lai, wife of late Justice D.B. Lai, Retd. Judge of this Court and against them also certain proceedings were initiated by the petitioner, but eventually no relief could be obtained by him, as all the pleas taken by him were found to be without merit. S.S. Kanwar, retired District Judge and Smt. Savitri Lai, wife of late Justice D.B. Lai, Retd. Judge of this Court and against them also certain proceedings were initiated by the petitioner, but eventually no relief could be obtained by him, as all the pleas taken by him were found to be without merit. It also deserves to be mentioned at this stage that the first civil suit which the petitioner had filed was got dismissed as withdrawn on 24.3.2005, possibly to meet the objection by respondents that the writ petition is not competent as the suit in regard to the same subject-matter is already pending in the Court of Senior Sub-Judge, Shimla. 12. Otherwise, also, petitioner who sold the plot to P.S. Verma, who in turn sold it to respondent No. 4, has no locus standi to question the plans which have been rightly sanctioned by the competent authorities. The petitioner is not the custodian of various departments of the Government, nor can he be said to be an aggrieved party in any manner. More so, respondent No. 4 has not committed any fraud whatsoever as alleged by the petitioner. As a matter of fact, he is a bona fide purchaser for consideration, and petitioner along with his co-owners having received consideration after the sale, has no right, title or interest in the property which has been legally sold to respondent No. 4. The writ petition is grossly an abuse of the process of the Court and is absolutely mala fide and baseless and was filed while the civil suit on the same subject-matter was pending with Senior Sub-Judge, Shimla. Petitioner with mala fide intention suppressed the fact of filing and pendency of Civil Suit and order dismissing his application for grant of ad-interim injunction. In the subsequent suit filed against Municipal Corporation, petitioner purposely did not implead respondent No. 4 and was able to obtain an order of status quo in regard to granting civil amenities like water etc. to the building of the petitioner. 13. It also deserves to be noted that Municipal Corporation during the course of hearing of this application brought to our notice that after writ petition was got dismissed as withdrawn, petitioner filed an application with the Commissioner dated November 28, 2005, asking him to maintain status quo in the matter till his application before this Court is decided. 13. It also deserves to be noted that Municipal Corporation during the course of hearing of this application brought to our notice that after writ petition was got dismissed as withdrawn, petitioner filed an application with the Commissioner dated November 28, 2005, asking him to maintain status quo in the matter till his application before this Court is decided. Said letter reads as under: "Re: C.W.P. 886 of 2005 I would like to bring to your notice that I had filed the above noted Civil Writ Petition in the year 2003, whereby it was highlighted that Shri Akshay Doegar, the owner of land bearing old Khasra No. 233/C/8 and new Settlement No. 98.3, had received sanction accorded to him for carrying out construction in the said land from the competent authorities through fraud, forgery, deceit and misrepresentation of facts. In the above matter, reply was filed by the respective respondents and the matter was mature for hearing and final disposal. On 7th November, Mr. Rajiv Sharma, Senior Counsel, appearing on my behalf made a statement that "the Writ Petition may be dismissed as withdrawn". Hence the matter was dismissed as withdrawn by the Honble High Court. However I am greatly aggrieved on account of this statement made by my Counsel. He had no instruction from me, written oral or implied and his actions were in direct contradiction to my interests in the matter. Moreover the order for grant of water and electricity by the Honble High Court was beyond the prayer of the Writ Petition. Consequently I have filed a complaint against Mr. Rajiv Sharma before the Honble Chairman, Bar Council seeking action against him. Simultaneously I have also filed an application before the Honble Double Bench requesting for a recall of the Order and for a hearing and decision on merits. I request therefore that status-quo be observed in the matter till the pending of my Application before the Honble High Court." 14. Copies of the afore quoted letter were also endorsed to the Chief Minister, H.P., Director, Town and Country Planning and the Architect Planner, Municipal Corporation, Shimla. The conduct of the petitioner clearly shows that he can go to any extent to harass respondent No. 4, or to achieve his ends. 15. Copies of the afore quoted letter were also endorsed to the Chief Minister, H.P., Director, Town and Country Planning and the Architect Planner, Municipal Corporation, Shimla. The conduct of the petitioner clearly shows that he can go to any extent to harass respondent No. 4, or to achieve his ends. 15. In view of the above discussion, we are of the view that application for recall of order dated November 7, 2005 deserves to be dismissed with exemplary costs. Accordingly it is so dismissed with costs which are quantified at Rs. 50,000/- (Rupees fifty thousand only), payable to respondent No. 4 who had been dragged into frivolous litigation time and again. Petitioner is directed to deposit the costs with the learned Registrar General of this Court within one month, failing which the Collector, Shimla is directed to recover the same as arrears of land revenue. Copy dasti. Petition disposed of.