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$-18 to 20 HIGH COURT OF DELHI
BAIL APPLN. 1697/2018
RAJNISH CITHABRA Petitioner
Through: Mr.Shahid Azad,Adv.
BAIL APPLN. 1697/2018
RAJNISH CITHABRA Petitioner
Through: Mr.Shahid Azad,Adv.
VERSUS
STATE Respondent
Through: Mr.Rajat Katyal,APP with SI Madhurendra Kumar P.S.EOW
Mr.Veeraj Datar and Mr.G.Narayan,Advs.for complainant
Through: Mr.Rajat Katyal,APP with SI Madhurendra Kumar P.S.EOW
Mr.Veeraj Datar and Mr.G.Narayan,Advs.for complainant
BAIL APPLN. 1699/2018
VIJAY BANSAL Petitioner
VIJAY BANSAL Petitioner
VERSUS
Through: Mr.Rajat Katyal,APP with SI
BAIL APPLN. 1706/2018
NARENDER KUMAR GUPTA Petitioner
NARENDER KUMAR GUPTA Petitioner
VERSUS
Through: Mr.RajatKatyal,APP with SI
CORAM:
HON'BLE MR.JUSTICE NAJMI WAZIRI
15.11.2018 On 23.07.2018, 01.08.2018, 23.08.2018 and 28.08.2018, the following orders were passed:
2018:DHC:8475
Order dated 23.07.2018 Orde dated 01.08.2018 "The petitioners seek anticipatory bail in FIR
No.0199/2017, registered with Police Station Economic Offences Wingfor offences under sections
447/454/457/506/511 IPG.
It is alleged that the petitioners have trespassed into the property of the complainant company, however, the petitioners contends that they are in possession of the property by virtue of this Court's order dated 03.11.2009 passed in CM(M)
No.771/2009. The relevant part thereof reads as under
"10. The contention of the respondents No. lto4/plaintiffs that they are also entitled in the suitfrom which this petition arises, to be-put back into possession ofthe land by removing even the furniture etc, of the petitioners lying thereon is not found to be tenable. The suit is not for the Relief of possession. If a person claims that his property is in h
"The learned counselfor the petitioners seeks time to adduce documents to show that the Us apropos the land in question relates back to the year 1997and that he is in the possession ofthe samefor more than two decades. He relies upon the order passed by this
Court in CM(M)No. 771/2009 dated 03.11.2009, an order ofthe Trial Court dated 13.07.2009, as well as orders in a Writ Petition permitting him to raise the boundary walls in the land. It is the petitioners'case that the issue pertains primarily to a civil dispute and the petitioner's possession ofthe land in question, has been established a longtime ago.
Atthepetitioner's request, list on 25.07.2018." possession of a, trespasser and the trespasser is raising an unauthorized construction, a mere order restraining or demolishing unauthorized construction would not entitle the said person to possession also. Ifhe is interested in possession ofthe property he has to suefor the same. Important reliefofpossession of immovable property cannot he claimed in such circuitous manner or in the garb ofsome other reliefas is stated to be the case here.
II. The petition is therefore disposed of with the following directions: a. The petitioners, who according to the respondents No. lto4/plaintiffs also were in possession of the land and had unauthprizedly constructed banquet hall/tent house on the said land and were carrying on said activity illegally thereon, shall continue to be in possession of the land till the order of appropriate court/authority directing dispossession ofthe petitioners there from. b. The petitioners shall remain bound by their undertaking recorded in the order dated 25'^ July, 2009 of the appeal court and shall not raise any construction, be a banquet hall or a tent house or even a temporary tent on the said land and shall not m cany on any activities of holding functions, solemnizing marriages thereon unless they obtain the requisite permissions/licences/sancions from the concerned authorities for the same. c. The respondents No. lto4/plaintijfs ifclaim to be entitled topossession of the landfrom the petitioners shall be so entitled only in a proper proceedings for the said relief. The counselfor the petitioners contends that the bar ofOrder 2 Rule 2 ofthe
CPC would come against such relief.
It is clarified that it will be open to the petitioners to take all pleas available in law to them in opposition to the said proceedings for possession if any initiated by the respondents No. lto4/plaintiffs. d. The suit as well as the appeal shall also stand disposed ofin terms ofthe aforesaid."
It is the complainant's case that the petitioners have broken a boundary wall and pushed around her guard at the spot. However, circumstances modifying the aforesaid order haveyetto be examined.
The learned counselfor the State contends that the petitioners are not in lawful possession of the property. Interestingly, before the Trial Court, declining them bail, they had stated that they were not the owners ofthe property but merely tenants ofthe present company.
The learned counselfor the petitioners submits that all these aspects will be explained to the
Investigating Officer and they are ready and willing to join the investigations.
In the aforesaid circumstance, let them appear before the Investigating Officer concerned, tomorrow i.e. on 02.08.2018 at 3.00 p.m. and on all such dates when they are required by thepolice.
List on 14.08.2018.
Till the next date ofhearing, the petitioners shall not be arrested."
Order dated 23.08.2018 "At the petitioner's request, renotify on
28.08.2018, when thepetitioners shall bring on record, documents showing either their title to the property or thatthey are in lawfulpossession ofthesame."
Order dated 28.08.2018 "At the outset, Mr. Azad, the learned counselfor the petitioners submits that the petitioners do not have any document to show that they either have title to the property or that they are in lawful possession ofthe same. He, nevertheless, relies upon the orders ofthis
Court to show that the petitioners are in possession of theproperty.
Mr. Viraj Datar, the learned counsel for the complainant submits that the petitioners' locus in the suit property is dubious because in thefirst instance, they claim to be in possession ofthe land through the erstwhile land owners, whilst simultaneously, the petitioners state that they are the complainant's tenants. He also refers to para 9 ofthe order dated
19.07.2018passed by the learned Trial Court rejecting the petitioners' request for anticipatory bail.
Additionally, he seeks time to bring on record the documents to show that the petitioners using dilatory methods and not showing their possession of the
1^ premises, legitimate or otherwise; he also seeks to rely upon various complaints made by the complainant to the various authorities, against the petitioners' trespass into their lands.
At his request, re-notify on 03.10.2018.
Interim orders to continue.
The petitioners, Mr. Rajnish Chhahra and Mr. Narender Kumar Gupta, shall report before the
Investigating Officer tomorrow i.e. on 29.08.2018 at
3.00p.m. Petitioner Mr. Vijay Bansal, who is grieved by bereavement in his extended family, will report before the Investigating Officer on 02.09.2018 at 3.00 p.m."
On 28.08.2018,the petitioners' counsel had stated that the petitioners did not have any documentto show thatthey have the title ofthe property or they are in lawful possession ofthe same. He,nevertheless, relied upon the order of this Court to show that the petitioner was in possession of the property. Insofar as the petitioner has no documentto prove his title to be in the premises; the learned counsel for the State submits that custodial interrogation would be necessary for ascertaining as to how they are in alleged possession ofthe said property.
The learned counsel for the petitioner submits that the offences alleged against the petitioner are all bailable. Furthermore, there was no building or house in which any trespass could have been committed. At best, the allegation can be that the petitioner had walked into somebody's open land. Therefore, offences under sections 454 and 457 IPG would not be applicable.
The learned counsel for the State submits that section 420 IPG too has been added apropos the petitioner having cheated many unsuspecting
V m citizens.
The learned counsel for the petitioner submits that offence under section 447 IPC would not be made out because the petitioner has been in possession ofthe land since 1997. He relies upon an order ofthis Court, as mentioned hereinabove. However,the learned counsel for the State submits that a reference to the aforesaid order is misleading because it was passed in a case pertaining only 120 sq. yards ofland apropos some other individual.
Indeed,now the petitioner has encroached an area ofalmost30 bighas which includes the land ofthe complainant.
In view of the above, the interim order is vacated. The petition is dismissed. ^
NAMl WAZIRI,J NOVEMBER 15,2018/acm ^
15.11.2018 On 23.07.2018, 01.08.2018, 23.08.2018 and 28.08.2018, the following orders were passed:
2018:DHC:8475
Order dated 23.07.2018 Orde dated 01.08.2018 "The petitioners seek anticipatory bail in FIR
No.0199/2017, registered with Police Station Economic Offences Wingfor offences under sections
447/454/457/506/511 IPG.
It is alleged that the petitioners have trespassed into the property of the complainant company, however, the petitioners contends that they are in possession of the property by virtue of this Court's order dated 03.11.2009 passed in CM(M)
No.771/2009. The relevant part thereof reads as under
"10. The contention of the respondents No. lto4/plaintiffs that they are also entitled in the suitfrom which this petition arises, to be-put back into possession ofthe land by removing even the furniture etc, of the petitioners lying thereon is not found to be tenable. The suit is not for the Relief of possession. If a person claims that his property is in h
"The learned counselfor the petitioners seeks time to adduce documents to show that the Us apropos the land in question relates back to the year 1997and that he is in the possession ofthe samefor more than two decades. He relies upon the order passed by this
Court in CM(M)No. 771/2009 dated 03.11.2009, an order ofthe Trial Court dated 13.07.2009, as well as orders in a Writ Petition permitting him to raise the boundary walls in the land. It is the petitioners'case that the issue pertains primarily to a civil dispute and the petitioner's possession ofthe land in question, has been established a longtime ago.
Atthepetitioner's request, list on 25.07.2018." possession of a, trespasser and the trespasser is raising an unauthorized construction, a mere order restraining or demolishing unauthorized construction would not entitle the said person to possession also. Ifhe is interested in possession ofthe property he has to suefor the same. Important reliefofpossession of immovable property cannot he claimed in such circuitous manner or in the garb ofsome other reliefas is stated to be the case here.
II. The petition is therefore disposed of with the following directions: a. The petitioners, who according to the respondents No. lto4/plaintiffs also were in possession of the land and had unauthprizedly constructed banquet hall/tent house on the said land and were carrying on said activity illegally thereon, shall continue to be in possession of the land till the order of appropriate court/authority directing dispossession ofthe petitioners there from. b. The petitioners shall remain bound by their undertaking recorded in the order dated 25'^ July, 2009 of the appeal court and shall not raise any construction, be a banquet hall or a tent house or even a temporary tent on the said land and shall not m cany on any activities of holding functions, solemnizing marriages thereon unless they obtain the requisite permissions/licences/sancions from the concerned authorities for the same. c. The respondents No. lto4/plaintijfs ifclaim to be entitled topossession of the landfrom the petitioners shall be so entitled only in a proper proceedings for the said relief. The counselfor the petitioners contends that the bar ofOrder 2 Rule 2 ofthe
CPC would come against such relief.
It is clarified that it will be open to the petitioners to take all pleas available in law to them in opposition to the said proceedings for possession if any initiated by the respondents No. lto4/plaintiffs. d. The suit as well as the appeal shall also stand disposed ofin terms ofthe aforesaid."
It is the complainant's case that the petitioners have broken a boundary wall and pushed around her guard at the spot. However, circumstances modifying the aforesaid order haveyetto be examined.
The learned counselfor the State contends that the petitioners are not in lawful possession of the property. Interestingly, before the Trial Court, declining them bail, they had stated that they were not the owners ofthe property but merely tenants ofthe present company.
The learned counselfor the petitioners submits that all these aspects will be explained to the
Investigating Officer and they are ready and willing to join the investigations.
In the aforesaid circumstance, let them appear before the Investigating Officer concerned, tomorrow i.e. on 02.08.2018 at 3.00 p.m. and on all such dates when they are required by thepolice.
List on 14.08.2018.
Till the next date ofhearing, the petitioners shall not be arrested."
Order dated 23.08.2018 "At the petitioner's request, renotify on
28.08.2018, when thepetitioners shall bring on record, documents showing either their title to the property or thatthey are in lawfulpossession ofthesame."
Order dated 28.08.2018 "At the outset, Mr. Azad, the learned counselfor the petitioners submits that the petitioners do not have any document to show that they either have title to the property or that they are in lawful possession ofthe same. He, nevertheless, relies upon the orders ofthis
Court to show that the petitioners are in possession of theproperty.
Mr. Viraj Datar, the learned counsel for the complainant submits that the petitioners' locus in the suit property is dubious because in thefirst instance, they claim to be in possession ofthe land through the erstwhile land owners, whilst simultaneously, the petitioners state that they are the complainant's tenants. He also refers to para 9 ofthe order dated
19.07.2018passed by the learned Trial Court rejecting the petitioners' request for anticipatory bail.
Additionally, he seeks time to bring on record the documents to show that the petitioners using dilatory methods and not showing their possession of the
1^ premises, legitimate or otherwise; he also seeks to rely upon various complaints made by the complainant to the various authorities, against the petitioners' trespass into their lands.
At his request, re-notify on 03.10.2018.
Interim orders to continue.
The petitioners, Mr. Rajnish Chhahra and Mr. Narender Kumar Gupta, shall report before the
Investigating Officer tomorrow i.e. on 29.08.2018 at
3.00p.m. Petitioner Mr. Vijay Bansal, who is grieved by bereavement in his extended family, will report before the Investigating Officer on 02.09.2018 at 3.00 p.m."
On 28.08.2018,the petitioners' counsel had stated that the petitioners did not have any documentto show thatthey have the title ofthe property or they are in lawful possession ofthe same. He,nevertheless, relied upon the order of this Court to show that the petitioner was in possession of the property. Insofar as the petitioner has no documentto prove his title to be in the premises; the learned counsel for the State submits that custodial interrogation would be necessary for ascertaining as to how they are in alleged possession ofthe said property.
The learned counsel for the petitioner submits that the offences alleged against the petitioner are all bailable. Furthermore, there was no building or house in which any trespass could have been committed. At best, the allegation can be that the petitioner had walked into somebody's open land. Therefore, offences under sections 454 and 457 IPG would not be applicable.
The learned counsel for the State submits that section 420 IPG too has been added apropos the petitioner having cheated many unsuspecting
V m citizens.
The learned counsel for the petitioner submits that offence under section 447 IPC would not be made out because the petitioner has been in possession ofthe land since 1997. He relies upon an order ofthis Court, as mentioned hereinabove. However,the learned counsel for the State submits that a reference to the aforesaid order is misleading because it was passed in a case pertaining only 120 sq. yards ofland apropos some other individual.
Indeed,now the petitioner has encroached an area ofalmost30 bighas which includes the land ofthe complainant.
In view of the above, the interim order is vacated. The petition is dismissed. ^
NAMl WAZIRI,J NOVEMBER 15,2018/acm ^
JUDGMENT