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HIGH COURT OF DELHI
Date of Decision: 7th March, 2023
JAGMINDER PAL SINGH AND ORS ..... Petitioners
Through: Mr. Sanjeev Manchanda, Advocate for petitioners –
Mr. Vikram Singh and Mr. Inderdeep Singh (Ph. 9811623477, e-mail: manchandasanjeev31@yahoo.com)
Through: Mr. Sanjay Katyal, Ms. Kritika Gupta, Mr. Nihal Singh, Advocates, Ms. Vaishali Tiwari, Advocates and
Mr.Vivek Chaudhary, DD for respondent-DDA (Ph. 8826331177, e-mail: kritika0504@gmail.com)
MINI PUSHKARNA, J. (ORAL):
JUDGMENT
1. This is an application filed on behalf of respondents/ DDA under Article 226 of the Constitution of India, 1950 read with Section 5 of the Limitation Act, 1963 seeking condonation of delay of 21 days in filing the Review Petition seeking review of the order dated 12.01.2023 passed by this Court.
2. Considering the submissions made in the present application, the application is allowed and the delay of 21 days in filing the review petition is condoned.
3. Application is disposed of accordingly.
REVIEW PET. 66/2023
4. The present review petition has been filed on behalf of respondents/ DDA under Article 226 of the Constitution of India, 1950 read with Section 114, Order 47 Rule 1 and Section 151 of Code of Civil Procedure, 1908 (‗CPC‘) seeking review of order dated 12.01.2023 passed by this Court in W.P.(C) 15059/2022.
5. It is the case on behalf of the DDA that the present review petition has been filed in view of the liberty as granted by the Division Bench of this Court in its judgment dated 10.02.2023 in LPA NO. 106/2023. By the said judgment dated 10.02.2023, the Division Bench had dismissed the appeal filed on behalf of the DDA against the order dated 12.01.2023 passed by this Court.
6. The present review petition is premised on the ground that there are certain factual errors which had crept in the order under review as according to the DDA, the petitioners have not brought forth correct facts before this Court.
7. It is urged on behalf of the DDA that the present writ petition has been filed by persons who are not the owners of the shops in question. He submits that M/s Bhatia Chemical Works is the original lessee, whose lease has already been cancelled by the DDA. Further, he submits that error has crept in order under review, as Jasbir Kaur and Sukhvinder Kaur are not the petitioners before this Court, whereas in the said order, it has wrongly been mentioned that the aforesaid Jasbir Kaur and Sukhvinder Kaur are petitioners in the present case. Further, attention of this Court has been drawn to the letter dated 05.05.2022 issued by the DDA, which has been attached with the review petition, wherein it has been submitted that the rejection of the restoration application was issued to four persons named therein on the ground that the breaches/ misuse still continue. Thus, it is submitted that the application for restoration of the Lease Deed in respect of the plot in question i.e. C-196/1, Rewari Line Industrial Area, Phase II was rejected.
8. It is further submitted that the petitioners have not filed any chain of events claiming their right of ownership from M/s Bhatia Chemical Works, the original Lessee.
9. The next ground as taken by the respondents/ DDA is that the Circulars dated 02.02.2009 and 09.02.2009 issued by the DDA for restoration have been kept in abeyance. In the said circulars, it is stipulated that if lease has been determined and allotment has been cancelled on account of unauthorized construction and misuse, the lease will be restored without insisting on removal of breaches and conversion will be allowed subject to payment of all penal charges. It is submitted that by office noting dated 02.05.2012, the said circulars dated 02.02.2009 and 09.02.2009 have been kept in abeyance after approval from the Lieutenant Governor. It is submitted that the said note with respect to the Circulars dated 02.02.2009 and 09.02.2009 having been kept in abeyance had not been filed inadvertently by the DDA earlier. The said note has been filed for the first time along with the Review Petition.
10. Learned counsel appearing on behalf of the petitioners, on advance notice, on the other hand, strongly refutes the submissions as made on behalf of the DDA. Learned counsel has drawn the attention of this Court to the documents which have been filed on behalf of the petitioners before this Court. The said documents contain an Agreement to Sell by one Sh. S.K. Choudhary in favour of Smt. Sukhvinder Kaur and Smt. Jasbir Kaur, who are stated to be sisters and the current owners of the property in question. By reference to the Agreement to Sell dated 21.03.1994, it is submitted that the original owner i.e. M/s Bhatia Chemical Works, through proprietor Sh. Ram Lal Bhatia had by registered Sale Deed sold the property in favour of Mr. S.K. Chaudhary. The said Mr. S.K. Chaudhary has transferred his right and title over the property in question to the two sisters, namely. Smt. Sukhvinder Kaur and Smt. Jasbir Kaur, who are the current owners of the property in question.
11. By reference to the said document and the fact that Smt. Sukhvinder Kaur and Smt. Jasbir Kaur are the current owners, it is submitted that the present petitioners, who are before this Court, have been authorized by the original owners themselves. It is submitted that petitioner No. 3 is the son of Jasbir Kaur, while petitioner Nos. 4 is the husband of Jasbir Kaur. As regards petitioner Nos. 1 and 2, it is submitted that they are the persons authorized by the original owners to run the shop in question. Thus, it is submitted that the recording of fact by this Court that Sukhvinder Kaur and Jasbir Kaur are before this Court, cannot be said to be incorrect as one of the owners, namely, Jasbir Kaur is represented through her husband and son, while the other two petitioners are the authorized representatives from the original owners.
12. It is further submitted that the petitioners have been in communication with the DDA since long for the purposes of restoration of the Lease Deed in question. Attention of this Court has been drawn to the Challan (pdf page No. 309) for the payment from State Bank of India deposited with the DDA, which under the head ‗type of payment‘ records the same as towards ‗restoration charges‘.
13. This Court has heard the learned counsels for the parties.
14. The basis on which the present review petition has been filed is that factual errors have crept in the order dated 12.01.2023. However, considering the submissions made on behalf of the petitioners, it is seen that the factual errors, which were pointed out by the DDA have clearly been explained by the petitioners. Therefore, submission of the DDA that these are factual errors in the order in question, is not justified and cannot be accepted.
15. It is to be noted that the DDA has relied upon the Note dated 02.05.2012 to submit that the Circulars dated 02.02.2009 and 09.02.2009 issued by the DDA pertaining to restoration of lease have been kept in abeyance. These facts have been brought forth by the DDA for the first time in the present Review Petition. This fact was neither pleaded before this Court earlier nor was brought to the notice of this Court at an earlier stage. The facts with respect to the consistent and uniform policy being followed by the DDA, including whether or not that after the abeyance of the above said Circulars in the year 2012, further restoration of any lease has been done by the DDA or not, are all questions that have to be dealt with by this Court at the time of hearing of the writ petition.
16. This Court cannot be oblivious to the fact that the petitioners, who derive their rights from the current owners, two of the petitioners being husband and son of one of the co-owners, have been in possession of the property in question since the year 1994. Thus, this Court would have to adjudicate upon the issue as regards the entitlement of the petitioners for consideration of their case for restoration of the Lease Deed, as per the Policy of the DDA, if any, as per the contention raised on behalf of the petitioners.
17. It is to be noted that scope of review is very limited and a review application can only be entertained if there is error apparent on the face of the record. The DDA has failed to point out any factor for review of the order dated 12.01.2023, especially when the said order was passed on the basis of prima facie case made out by the petitioners. The contentious issues as sought to be raised by way of the review petition, are issues which the Court would adjudicate at the time of final hearing of the matter.
18. On the aspect of scope of review, Supreme Court in the case of
19. Thus, while hearing a review petition, jurisdiction of the Court is limited and is not akin to appellate jurisdiction. While hearing a review petition, Court will not substitute its earlier view merely on the ground that taking another view is possible. Similarly, the fact that DDA has now filed the office noting to the effect that its earlier circulars pertaining to restoration of lease have been kept in abeyance, is no ground for seeking review. Supreme Court has held time and again that a judgment or order may be open to review when any new or important evidence is discovered, however, this is subject to the condition that such evidence was not within the knowledge of the party who seeks review or could not be produced despite due diligence. The DDA has not been able to satisfy the aforesaid twin conditions for the purposes of review of the order in question.
20. It is also to be noted that the order dated 12.01.2023 passed by this Court was considering the fact that DDA itself had admitted that restoration of Lease was being done by the DDA, as per its policy. Thus, all these questions with respect to the restoration of Lease by the DDA and the policy of the DDA in this regard, would have to be examined by this Court.
21. Considering the submissions made before this Court and the law in this regard, it is held that the DDA has not been able to make out any ground as such for review of the order dated 12.01.2023 passed by this Court.
22. In view of the abovesaid detailed discussion, the present review petition is dismissed. MINI PUSHKARNA, J MARCH 7, 2023