Praveen Jain v. Financial Commissioner and Others

13. The hotly contested and disputed facts can be ascertained by the various orders passed between the parties which are as follows: Order dated 04.02.2021 passed by the Revenue Assistant: “By this order, I shall decide the suit filed u/ s 84 of Delhi Land Reforms Act, 1954 by petitioners M/ s Tanishq Estate (P) Ltd. In respect of the land bearing Khasra No. 193/1(0-8), 193/2 /2 (0-9), 193/2/2 (0-8), 193/2 (3-0), 193/1(3-11), 193/ 2/2 (2-18), 193/1 (3-

0) total measuring 13 Bhigha 14 biswas and Khasra No. 193/2/4 (6-15) situated within the revenue estate of Village Bijwasan Delhi for ejectment of the respondents and the applications filed by the respondents under Order 7 Rule 11 read with Section 151 CPC & under Section 10 of CPC 1908.

1. The present petition has been filed by the petitioner on the ground of being bhumidhar of the subject land which entitles the petitioner to eject respondents who are occupying it without title. Section 84 of DLR Act (for short the act herein after referred as Act) provides Ejectment of Occupant Occupying without title.

2. The petitioner in support of his contention has submitted that the suit land has been purchased by the petitioner vide registered sale deed dated 26/04/2019 on the basis of which the mutation of the Subject land was duly sanctioned in its favour and since then the petitioner is the bhumidhar of the same till date. The petitioner has also pointed out regarding earlier litigations between the parties during mutation proceeding which were decided in favour of petitioner. The petitioner had also mentioned filing of civil suit CS/131/17 with respect to suit land which was dismissed by the court of Sh. Ankur Jain, Ld. ADJ, Central Delhi, Tis Hazari Court, Delhi 05/09/2018 and another civil suit no, CS/ SCJ/316/2019 pending in the court of Civil Judge Dwarka Court, Delhi with respect to same land and also about pendency of one RFA in Hon’ble High Court of Delhi.

3. The respondents have opposed the claim of the petitioner on the ground that the petitioner is not in physical possession of the suit land since the year 1998 and for recovery of possession of the land within 03 year from the date of commencement of the possession. The respondent had also made submission regarding decision of one order passed by Sh. Ankur Jain, ADJ, Tis Hazari Court, dated 03/09/2018 and pendency of one RFA in the Hon’ble High Court of Delhi. The respondent has also filed two applications under order 07 Rule 11 CPC for rejection of petition and another application under section 10 CPC for stay of suit/petition.” Order dated 21.08.2023 passed by the Deputy Commissioner:

7.6. Regarding Possession of Suit land: It was argued that Smt. Manju Jain was in possession of suit property as the telephone connection stood in her name. It was stated that there was a telephone connection on the suit property in favour of Smt. Manju Jain but that the same was disconnected in December 2000. If she was in possession, then under no circumstances she would have allowed it to be disconnected. On the contrary Sh. Praveen Jain by way of evidence has proved that they are in exclusive possession of the suit property. The testimonies clearly shows that Parveen Jain is the member of Pushpanjali Farms Association and which has never been objected to by Smt. Manju Jain in the written statement it was clearly stated that she was not in possession of the suit property. Therefore it was incumbent upon her to have amended the suit and seek relief of possession. In the absence of same, bar under section 34 of the Specific Relief Act would clearly operate. In fact Smt. Manju Jain from day one knew that they are not in actual physical possession. It is for this reason that the relief sought by them is "owner in possession" no simply declaration that she is the owner, it is the case of clever drafting this court fails to understand as to why such a relief was not sought. The only irresistible conclusion which can be drawn is that plaintiff did not want to pay the court fee on the market price of land. Moreover the relief of declaration is a discretionary relief. Plaintiff has also not come to the court with clean hands. The story of blank documents being used by Sh. Praveen Jain is completely unreliable and unrealistic. She has failed to plead the circumstances under which the documents were in power and possession of Sh. Praveen Jain. It appears that true facts were withheld from the court for the reasons best known to Smt. Manju Jain. At the same time, Sh. Praveen Jain has also not been able to prove the execution of family settlement and GPA by Smt. Manju Jain. Thus, in so far relief of declaration is concerned the same cannot be granted to Smt. Manju Jain. Accordingly this issue is partly decided in favour of the plaintiff and partly in favour of the defendant.” Order dated 15.02.2024 passed by learned Financial Commissioner:

14. It is trite that a Writ Court cannot decide disputed questions of facts and in the present case, it is apparent from the facts and orders that parties have decades old, hotly contested disputes which cannot be resolved by summary procedure by way of affidavits in writ jurisdiction and would have to be resolved by leading cogent evidence. This Court is fortified in its view by the judgment passed by this Court in Harpati & Ors. Vs. State of NCT of Delhi & Ors. reported in 2023 SCC OnLine Del 4607, wherein the learned Division Bench relied upon various judgements of the Supreme Court to hold as under:

17. It is settled law that a High Court should not exercise its jurisdiction under Article 226 of the Constitution of India when it raises disputed question of facts. The Hon'ble Supreme Court in the case of Chairman, Grid Corpn. of Orissa Ltd. (Gridco) v. Sukamani Das, (1999) 7 SCC 298 was dealing with the question of whether the High Court had made an error in entertaining a writ petition filed seeking compensation for the death of a person due to electrocution, which had allegedly been caused due to the negligence of the authorities. The Apex Court in the said case observed as under:

18. The aforesaid judgment has been relied/reiterated by the Apex Court in S.P.S. Rathore v. State of Haryana, (2005) 10 SCC 1 wherein it observed as follows:

19. Similarly, the Hon'ble Supreme Court in Shubhas Jain v. Rajeshwari Shivam, 2021 SCC OnLine SC 562 has held as under:

20. Subsequently, in Union of India v. Puna Hinda, (2021) 10 SCC 690, the Hon'ble Supreme Court has observed:

21. Recently, the Hon'ble Supreme Court in the case of M.P. Power Management Co. Ltd. v. Sky Power Southeast Solar India (P) Ltd., (2023) 2 SCC 703, while dealing with the issue of exercise of writ jurisdiction by a Court in matters arising out of a contract, has stated: “82.7. The existence of an alternate remedy, is, undoubtedly, a matter to be borne in mind in declining relief in a writ petition in a contractual matter. Again, the question as to whether the writ petitioner must be told off the gates, would depend upon the nature of the claim and relief sought by the petitioner, the questions, which would have to be decided, and, most importantly, whether there are disputed questions of fact, resolution of which is necessary, as an indispensable prelude to the grant of the relief sought. Undoubtedly, while there is no prohibition, in the writ court even deciding disputed questions of fact, particularly when the dispute surrounds demystifying of documents only, the Court may relegate the party to the remedy by way of a civil suit.”

22. A reading of the aforesaid judgments makes it clear, that it is well settled proposition of law that when there are disputed question of facts involved in a case, the High Court should not exercise its jurisdiction under Article 226 of the Constitution of India. Particularly in cases where tortious liability and negligence is involved, it has been held that the remedy under Article 226 may not be proper. In the instant case, the relief of compensation sought by the petitioners is contingent upon the resolution of the disputed question of facts raised, and these questions cannot be adjudicated only on the basis of affidavits. In view of the aforesaid, it would not be appropriate for this Court to entertain the instant writ petition as there are disputed questions of fact involved, the resolution of which is necessary, as an indispensable prelude to the grant of the relief sought.

23. The Petitioners are at liberty to take recourse to other alternate remedies available to them under the law.” On the one hand, the petitioner did not assail the order dated 15.02.2024 of learned Financial Commissioner and on the other, is seeking indulgence of this Court under Article 226 of the Constitution of India to pass the direction of restitution. This Court under Article 226 of the Constitution of India would be precluded from considering such disputed questions of facts. Thus, the present petition may not be maintainable.

15. A perusal of the order dated 15.02.2024, particularly paras 8 to 13, it is apparent that after appreciating the judgements passed by this Court in Rajeev Shah (supra), Shweta Agarwal (supra), and Sh. Jitender (supra) which followed the ratio laid down in Mohinder Singh (supra), the learned Financial Commissioner had given sufficient time for the parties to approach the appropriate forum of law for redressal of their grievance, if any. It is in fact pertinent to note that in paragraph 13 of the order dated 15.02.2024, not only did the learned Financial Commissioner grant liberty to the parties, the learned Financial Commissioner had also given protection for the next 60 days from the date of the order to approach the Civil Court and simultaneously directed that no third party interest shall be created by the parties of the subject land.

16. A co-ordinate bench of this Court in Radiance Fincap (P) Ltd. v. State (NCT of Delhi) reported in 2023 SCC OnLine Del 3432 held as under:

17. The petition alongwith pending applications is dismissed with no order as to cost.

TUSHAR RAO GEDELA, J. MARCH 14, 2024