Research › Search › Judgment

Delhi High Court · body

2008 DIGILAW 662 (DEL)

Vije Kumar v. Vaibhav Gupta

2008-07-08

AJIT PRAKASH SHAH, S.MURALIDHAR

body2008
ORDER 1. This appeal is directed against the order dated 13th March, 2008 passed by the learned single judge of this Court in W.P. (Crl.) No. 328 of 2008. 2. The writ petition was filed by Vaibhav Gupta and his wife Anjali Gupta against the Commissioner of Police, Deputy Commissioner of Police and the Station House Officer of Police Station Chitranjan Park, New Delhi alleging misuse of the power and authority by the police and seeking protection of the writ petitioners to "use and enjoy the property which has been purchased by them for variable consideration and not to interfere into peaceful use and enjoyment of the property being E-558A, Greater Kailash II, New Delhi (property). 3. The writ petitioners in para 3 of the petition claimed that: 3. ...the petitioners purchased plot measuring 723 sq. yds. More particularly described as Plot No. E-558-A, G.K. II, New Delhi vide three separate registered sale deeds dated 28.11.2006, 4.12.2006 and 18.12.2006 respectively in the name of the petitioner Nos. 1 and 2 for a total consideration of Rs. 75 lakh from its registered original owners Shri Vijay Kumar, Shri Ramesh Kumar, Shri Pawan Kumar all sons of Shri Mohan Lal through their brother and General Power of Attorney Shri Jitender Kumar, son of Shri Mohan Lal r/o A-364 Gokul Puri, Delhi110094. 4. The petitioners enclosed photocopies of the sale deeds as well as of the deed of General Power of Attorney (GPA) stated to have been executed in favour of Jitender Kumar Sharma by Vijay Kumar, Ramesh Kumar and Pawan Kumar. It was stated in the writ petition that there was only one room built in the entire plot on which the writ petitioners had affixed their lock and were therefore in possession. It is claimed that when, with a view to repairing the main gate, they visited the plot on 24th December, 2007 along with certain labourers a person by the name of Partap Mohan obstructed the labourers and did not allow them to carry out the repair work. Petitioner No. 1 filed a complaint with the SHO, PS Chitranjan Park on 24th December, 2007. Petitioner No. 1 filed a complaint with the SHO, PS Chitranjan Park on 24th December, 2007. It stated further that when petitioner No. 1 sought to recommence the repair work of the main gain on 10th March, 2008, a Beat Constable of the area came to the site made inquiries and threatened petitioner No. 1 to stay away since the property belonged to the current SHO, Chitranjan Park. It is then claimed that the SHO also came to the site and warned the petitioner No. 1 to keep off the plot. 5. On the basis of the above allegations, the aforementioned writ petition was filed on 12th March, 2008. On 13th March, 2008 the following impugned order was passed by the learned single Judge: 13. 3.2008. Present: A.B. Dial, Sr. Advocate with Mr. M.K. Sashisth for the Petitioners. Mr. Akshay Bipin, Advocate for the State. W.P. (Crl.) 328/2008 & CM. No. 3149/2008 Issue Notice. Mr. Akshay Bipin, Advocate accepts notice for the respondents. Mr. Akshay Bipin, learned Counsel for the State says that this property belongs to three persons who are NRIs namely Pawan Kumar, Vijay Kumar and Ramesh Kumar, and they have never given any power of attorney to Jitender Kumar. They are original allottees of the plot from M/s DLF. They have never sold the property to the petitioners nor given any power of attorney. They have never executed any document in favour of Jitender Kumar. The counsel for the respondents states that Jitender Kumar appears to be a fictitious person as his address on the sale deed has been found to be false. Learned Counsel for the respondents states that the person residing at the address given is Sohan Lal and no such person by the name of Jitender Kumar resides at AO-364, Gokul Puri, New Delhi. Learned Counsel for the respondents further states that some forgery appears to have been committed in this case and some fictitious sale deed has been executed with regard to the said property by a fictitious person Jitender Kumar. Learned counsel for the petitioners is directed to supply the copy of the original sale deed and power of attorney to the respondent No. 3 who shall verify the same. The police is also directed to enquire into the issue, report whereof shall be sent to the court before the next date of hearing. Learned counsel for the petitioners is directed to supply the copy of the original sale deed and power of attorney to the respondent No. 3 who shall verify the same. The police is also directed to enquire into the issue, report whereof shall be sent to the court before the next date of hearing. The petitioners are also directed to cooperate with the police. After hearing learned Counsel for the parties, I am of the considered opinion that the property needs to be sealed as there are rival claimants to the premises. It is in the best interest of both the parties that the property be sealed. Therefore, I appoint Mr. Rajat Katyal, Advocate, Chamber No. 422/236, Delhi High Court, Lawyers Chambers, Mobile No. 9811250543, as Local Commissioner to go to the spot today at 4 P.M. and seal the property. Parties are directed to be present there. The fee of the Local Commissioner is fixed at Rs. 10,000/- to be paid equally by both the parties. .6. The appellants herein Vije Kumar, Ramesh Kumar and Pawan Kumar sons of Late Shri Mohan Lal, presently residing in London, claim to have purchased the said property from DLF on 21st September, 1972. A copy of the sale deed in their favour has been enclosed with the appeal. It is stated that they have been paying property tax to the Municipal Corporation of Delhi (MCD) and their names have duly been mutated in the property tax records of the MCD. It is stated that on 13th March, 2008 when the learned Local Commissioner appointed by the learned single judge reached the premises in question, the appellants 1 and 2 were present. The learned Local Commissioner directed opening of the locks of the gate to the property and the same was opened by the employee of the appellants who had been employed by them as a guard. The Local Commissioner took photographs of the property and sealed the same. The report of the learned Local Commissioner was filed before the learned Single Judge on 17th March, 2008. In his report, the Local Commissioner has stated inter alia as under: 2. The Local Commissioner took photographs of the property and sealed the same. The report of the learned Local Commissioner was filed before the learned Single Judge on 17th March, 2008. In his report, the Local Commissioner has stated inter alia as under: 2. That the undersigned in pursuance of orders of this Honble Court visited the property in question on 13.3.2008 at 4.00 p.m. and there found both the parties i.e. Shri Vaibhav Gupta s/o Shri Rakesh Kumar and Shri Vijay Kumar s/o Late Shri Mohan Lal present outside the property in question, who were identified by Sir Anil Direja, SHO, CR Park. Also representative of both sides were present at the spot. 3. That Shri Vijay Kumar was told about the order dated 13.3.2008 and of this Honble Court and was told the purpose of the visit. 4. That the main door of the property was locked and on direction one person named Prabhat Rahul S/o Shri Bhajori Rahul r/o Village Tal Chitkan, Post Bramukhal, West Bengal opened the lock of the main door, who on enquiry stated that he is the guard of the property posted there on behalf of Mr. Vijay Kumar s/o Late Sh. Mohan Lal. That the lock was opened in the presence of the petitioner Sh. Vaibhav Gupta, Sh. Vijay Kumar and SHO, CR Park and other persons. 7. It is contended by Mr. Sidharth Luthra, Learned Senior Counsel appearing for the appellants assisted by Mr. Reetesh Singh, learned Advocate that the claim of the respondents 1 and 2 Vaibhav Gupta and his wife Anjali Gupta that they were the owners of the property, is false and the documents produced by them are forged and fabricated. After coming to Delhi in September, 2007 the appellant No. 1 Vije Kumar learnt that some persons were trying to forge documents to effect the sale of the said property. He then gave a complaint on 24th September, 2007 at PS Chitranjan Park, New Delhi. A further complaint was made on 24th January, 2008. After the Local Commissioner appointed by the learned Single Judge of this Court visited the property and sealed it, the appellants through their Power of Attorney Praveen Oberoi made a further complaint on 15th March, 2008 to the SHO, PS Chitranjan Park. A further complaint was made on 24th January, 2008. After the Local Commissioner appointed by the learned Single Judge of this Court visited the property and sealed it, the appellants through their Power of Attorney Praveen Oberoi made a further complaint on 15th March, 2008 to the SHO, PS Chitranjan Park. It is submitted that apart from being an abuse of the process of law, the writ petition filed by respondents 1 and 2 on the criminal side raising highly disputed questions was clearly not maintainable as such. Respondents 1 and 2 sought to invite the writ court to adjudicate on the questions of title and possession of the property in question. It is submitted that the learned Single Judge exceeded his jurisdiction in entertaining the writ petition and directing the sealing of the property. .8. Ms. Mukta Gupta, learned Senior Standing Counsel appearing for the Government of National Capital Territory of Delhi (GNCTD) drew the attention of the Court to the inquiry report of the police dated 14th May, 2008 wherein it is stated that the complainants had produced the original sale deed executed by the DLF in their name, which was verified to be genuine. As regards the GPA Jitender Kumar, who according to the respondents 1 and 2 had sold them the property, he was not traceable at the address given, the driving licence produced by him for identification at the time of execution of the sale deed was found to have been issued to another person Khaliunawaz s/o Shahnawaz. Therefore, the identity of the GPA was fictitious. Further, FSL report showed that the signatures of the original allottees did not match with their alleged signatures on the power of attorney. Eighteen cheques towards payment which were made by the respondents 1 and 2 were got verified. Cheques at Sr. Nos. l to 5 were never debited to the account of the respondents 1 and 2 i.e. Vaibhav Gupta and his wife. Stop payment instructions were issued in regard to one cheque. Another cheque was credited in the account of one Akhil Kumar Gupta at Punjab National Bank, Loni Road, Ghaziabad, which account did not exist at present. Cheques at Sr. Nos. 8 to 18 were issued in 200S and not on the dates given by respondents 1 and 2. Cheques at Sr. Nos. 8 to 13 were made payable to self and cheques at Sr. Cheques at Sr. Nos. 8 to 18 were issued in 200S and not on the dates given by respondents 1 and 2. Cheques at Sr. Nos. 8 to 13 were made payable to self and cheques at Sr. No. 1, 4 to 18 were credited to different persons. Accordingly, it is submitted on behalf of the respondent GNCTD that the claim of title to the property made by respondents 1 and 2 appears to prima facie false and based on forged documents. The Court is further informed that the complaints made by the Appellants are being further investigated and will be taken to their logical conclusion. 9. Appearing on behalf of the respondents 1 and 2, Mr. S.S. Gandhi, learned Senior Counsel submitted that his clients were bonafide purchasers of the property in question. Although he did not dispute the fact that Jitender Kumar, the GPA who is purported to have been acted on behalf of the vendors, was no longer traceable, he claimed there was another set of persons by the names Rakesh Kumar, Pawan Kumar and Vijay Kumar. Mr. Gandhi sought to produce in Court the sale deed executed by DLP in respect of this property in favour of those persons. This stand is at variance with the earlier one taken in the writ petition that respondents 1 and 2 had purchased the property from the appellants. This is perhaps due to the fact that it is now clear that the appellant No. 1 spells his name as Vije Kumar and not Vijay Kumar as shown in the copy of GPA and the sale deeds. The signatures also prima facie appears to be different. Mr. Gandhi did not dispute the fact that the original GPA was not shown to the police during investigation and it was a photocopy which had to be sent for testing to the FSL for the opinion of the handwriting expert of the FSL. He sought to produce before this Court details of the payments, made by cheques as reflected in a statement issued by the concerned Bank. However, according to Counsel for the appellants the cheque numbers in the said statement did not tally with the cheques stated to have been issued by the respondents 1 and 2 towards payments for the purchase of the property. 10. However, according to Counsel for the appellants the cheque numbers in the said statement did not tally with the cheques stated to have been issued by the respondents 1 and 2 towards payments for the purchase of the property. 10. After considering the submissions made and perusing the documents it is clear to this Court that the writ petition filed by the respondents 1 and 2 was clearly misconceived. It seeks to raise disputed questions of fact pertaining to the title and possession of the property in question. This obviously cannot be decided in a writ petition under Article 226 of the Constitution of India and that too in the criminal jurisdiction. The appointment of Local Commissioner to visit the premises and seal the property was clearly beyond the scope of the powers of a writ Court exercising jurisdiction under Article 226. We are of the considered view that the learned Single Judge ought not to have entertained the writ petition, much less passed the impugned order. .11. From the investigation carried out by the police thus far, it prima facie appears that the documents relied upon by the respondents 1 and 2 are forged and fabricated. Respondents 1 and 2 have passed their claims in the writ petition on the basis of such documents. These are of course matters requiring further investigation by the police and it is expected that the investigation will be taken to its logical end. Without commenting any further on these aspects, lest it prejudice any of the parties, it appears to this Court that these are sufficient grounds for dismissing the writ petition itself as misconceived and not maintainable. .Accordingly, the impugned order dated 13th March, 2008 is set aside. For the reasons explained, W.P. (Crl.) No. 328 of 2008 filed by the respondents 1 and 2 is plainly misconceived and not maintainable and it is accordingly dismissed as such. 12. Consequently, it is directed that the status quo ante impugned order dated 13th March, 2008 should be restored. The appellants through their authorized representatives and counsel will appear before the Registrar General on Monday 14th July, 2008 at 11 a.m. The keys of the property stated to be deposited in the Court will be handed over to the person from whom the Local Commissioner took possession. The appellants through their authorized representatives and counsel will appear before the Registrar General on Monday 14th July, 2008 at 11 a.m. The keys of the property stated to be deposited in the Court will be handed over to the person from whom the Local Commissioner took possession. For this purpose, the Local Commissioner will also remain present before the Registrar General on the date fixed. 13. With the above directions, the appeal is allowed and the pending application is disposed of with costs of Rs. 20,000/- which will be paid by the respondents 1 and 2 to the appellants within four weeks. 14. Order dasti to the parties. A copy of this order will be placed on file of W.P. (Crl.) No. 328 of 2008. Petition allowed