Phulle & Ors. v. Commissioner, Rohtak Division, Rohtak & Ors.

Order

“Learned counsel for the parties are ad-idem that if the petitioners deposit the commensurate amount at the Collector rate within a period of two months, the respondents shall take a conscious and cautious decision in regard to execution of the documents for transferring the title in favour of the petitioners. Learned counsel for the Municipal Corporation states that the Municipal Corporation has agreed to transmit the CWP No.11847 of 2002 - 3 - CWP No.10975 of 2009 title subject to sanction from the Government and that in this regard the recommendation has been sent to the concerned quarters. As and when the sanction is received the same shall be acted upon accordingly. It is made clear that if for any reason the sanction is not granted by the government, the amount deposited shall be refunded to the petitioners accordingly.

It shall be appreciated that if the government takes a conscious and cautious decision within a period of one month after the amount is deposited by the petitioners. If the transmission of title is not passed, the corporation shall be entitled to recover the amount for the use and occupation of the land and that shall proceed in accordance with law. The petitioners are at liberty that in case the sale transaction does not mature, they can revive the petition.

Disposed of.” According to the petitioners, the sale transaction could not mature as anticipated. Consequently, the petitioners filed Miscellaneous application namely, CM No.24216 of 2008, for revival of the writ petition. CWP No.11847 of 2002 - 4 - CWP No.10975 of 2009 The said application was disposed of by this Court on 30.7.2009 with the following order: “Earlier the petition has been disposed of vide order dated 9.2.2006 by passing the following order: - “Learned counsel for the parties are ad-idem that if the petitioners deposit the commensurate amount at the Collector rate within a period of two months, the respondents shall take a conscious and cautious decision in regard to execution of the documents for transferring the title in favour of the petitioners. Learned counsel Municipal Corporation states that the Municipal Corporation has agreed to transmit the title subject to sanction from the Government and that in this regard the recommendation has been sent to the concerned quarters. As and when the sanction is received the same shall be acted upon accordingly. It is made clear that if for any reason the sanction is not CWP No.11847 of 2002 - 5 - CWP No.10975 of 2009 granted by the government, the amount deposited shall be refunded to the petitioners accordingly. It appreciated government takes a conscious and cautious decision within a period of one month after the amount is deposited by the petitioners. If the transmission of title is not passed, the corporation shall be entitled to recover the amount for the use and occupation of the land and that shall proceed in accordance with law. The petitioners are at liberty that in case the sale transaction does not mature, they can revive the petition. Disposed of.” In terms of the above order, the parties were ad-idem that the petitioners were to deposit the commensurate amount at the Collector rate within a period of two months and the respondents were to take a conscious and cautions decision in regard to the execution of the CWP No.11847 of 2002 - 6 - CWP No.10975 of 2009 documents for transferring the title in favour of the petitioners. The petitioners have filed CM No.24216 of 2008 for revival of the petition and it be heard on merits. Besides, specific directions be given to the government to give sanction to the Municipal Corporation/Municipal Council to give the title of the land in question to the petitioners as they have deposited the requisite amount with the Municipal Committee/Council in compliance to the order dated 9.2.2006. A photocopy of the draft dated 7.4.2006 (Annexure P-1) for an amount of Rs.4 lacs has been placed on record. In the reply filed by the Municipal Council, it is stated that no such draft was submitted by the petitioners ever and neither was it ever returned. The photocopies of the receipt register (Annexure R3/1) for the period from

27.3.2006 to 4.5.2006 and the dispatch register (Annexure R3/2) for the period from 5.4.2004 to 5.5.2004 as also the photocopies of the general cash book (Annexure R3/3) for a period from

4.4.2006 to 28.4.2006 have been CWP No.11847 of 2002 - 7 - CWP No.10975 of 2009 placed on record. On the strength of the same it is submitted that no draft (Annexure P-1) was ever given to the Municipal Committee, Kharkhoda. During the course of hearing, learned counsel for the petitioners has submitted that he has brought the draft today also in Court and the same may be accepted. Learned counsel appearing for the Municipal Committee on instructions from Mr.R.L. Bansal, Secretary, Municipal Committee, Kharkoda has submitted that the draft cannot be accepted at this stage and even otherwise, the collector rate at present would be about Rs.1 crore 25 lacs @ Rs.2600/- per sq. yard. It is also stated that even if the petitioners are willing to deposit the amount, he (Secretary, Municipal Committee) is not in a position to accept the same and he can only make a statement after obtaining necessary permission and instructions of the competent authority. Learned counsel appearing for the petitioners has submitted on instructions from one of the petitioners CWP No.11847 of 2002 - 8 - CWP No.10975 of 2009 that the petitioners are willing to pay the collector rate as at present. In order to explore the possibility, the Municipal Committee, Kharkoda may seek necessary instructions by the adjourned date. List on 10.8.2009. Meanwhile, the houses of petitioners shall not be demolished.” While the Ist petition was going on, the Municipal Committee filed an application for executing the order of eviction in which the Collector, Sonepat, vide order dated 14.7.2009, issued warrant of possession. This led to the filing of the IInd petition which came up for preliminary hearing on 24.7.2009 and was ordered to be listed along with Ist petition, in which the aforesaid order dated 30.7.2009 was passed and demolition was stayed. On 27.8.2009, following order was passed in the Ist petition: “Mr.Sanjay Chauhan, Advocate has put in appearance on behalf of Municipal Committee, Kharkoda (respondent No.3). he has filed his vakalatnama signed by Secretary, Municipal Committee, Kharkoda (respondent No.3) in his favour which is taken on record. Learned counsel for respondent No.3 submits that the Municipal Committee, Kharkoda (respondent No.3) is not in a CWP No.11847 of 2002 - 9 - CWP No.10975 of 2009 position to accept the collector rate of Rs.1 crore 25 lacs @ Rs.2600/- per square yard as about 300 kanals land of the Municipal Committee, Kharkoda (respondent No.3) is under illegal occupation. List for arguments on 13.10.2009. To be taken up after urgent cases. Meanwhile, stay to continue.” It is pertinent to mention that in the Ist petition, one Smt. Krishna Malik, Municipal Councillor, Ward No.7, Municipal Committee, Village Kharkoda filed an application namely, CM No.17802 of 2009 in order to become a party. However, the said application was dismissed by the learned Single Judge on 15.12.2009. Since, the IInd petition was ordered to be heard with the Ist petition, therefore, the main orders are being recorded in the Ist petition in which the petitioners accepted that they are ready to purchase the land @ `5000/- per sq. yards. The order in this regard, dated 31.1.2011, reads as under: “Learned counsel for the petitioners contends that the petitioners are ready to purchase land @5000/- per sq. yard . Learned counsel for the respondent prays for time to take instructions. Adjourned to 9.2.2011.” At one stage of hearing of the Ist petition, this Court had felt that the Municipal Committee is not properly assisting the Court and, hence, appointed an Amicus Curiae, who prepared an exhaustive note, CWP No.11847 of 2002 - 10 - CWP No.10975 of 2009 in consequence of which this Court passed the following order on

26.5.2011: “A note prepared by counsel Amicus Curiae is taken on record. The Court records its appreciation for the exhaustive note that ha been prepared and placed on record. Learned counsel for the petitioners seeks indulgence of the Court to grant him time to take instructions from his clients as to whether the petitioners are ready and willing to pay @ `5000/- per square yard the Municipal Committee. In case they agree to pay, the time Schedule for payment viz. within 3 months would also be indicated to the Court, whereupon the Municipal Committee would take instructions whether the land can be spared to be sold to the petitioners, after taking into account common purposes, for which the land might be required. Adjourned to 19.7.2011 .” Counsel for the Municipal Committee informed the Court that resolution in terms of the aforesaid order has been passed and forwarded for approval to the appropriate authority but on 31.1.2012, an interim order was recorded by this Court to the following effect: CWP No.11847 of 2002 - 11 - CWP No.10975 of 2009 “Counsel for Municipal Committee, Kharkhoda submits that resolution passed by the Committee has not been forwarded to the Government as the petitioner did not deposit the requisite amount. As the counsel for the petitioner is not present, adjourned to 21.2.2012. In order to adjudge the bona fides of the petitioners, who are, admittedly, in illegal occupation over the land of Municipal Committee, since long and despite the fact that eviction order has been passed, this Court on 22.2.2012 passed the following order: “Last opportunity is granted to the petitioners to deposit 25% of the amount demanded by the Municipal Committee. Let the amount be deposited within a fortnight. To come up on 19.4.2012.” Today, along with the main petition, two miscellaneous applications have also been listed, i.e., (i) CM No.5185 of 2012 filed by Smt. Krishna Malik, Municipal Councillor, R/o Ward No.7, Municipal Committee, Village Kharkhoda, District Sonepat, under Order 1 Rule 10 (2) of the Code of Civil Procedure, 1908 and (ii) CM No.5186 of 2012 under Section 151 of the CPC, for recalling of the order dated 26.5.2011 passed by the Single Judge of this Court. Counsel for the Municipal Committee has pointed out that the petitioners are playing hide and seek with the Court as they have not CWP No.11847 of 2002 - 12 - CWP No.10975 of 2009 deposited 25% of the amount demanded by the Municipal Committee, as directed by this Court, vide order dated 22.2.2012 and are in unauthorized possession, since long. In reply, counsel for the petitioners submitted that some amount has been deposited but it is not in accordance with order dated 22.2.2012. We have heard counsel for the parties in detail and have perused the entire record. In this case, this Court did not accept the petitioners submissions, on merits but while disposing of the Ist petition on

9.2.2006, passed an equitable order that if the petitioners are ready and willing to deposit necessary commensurate amount, at Collector rate, the respondents would think of taking a conscious and cautious decision including executing of documents for transferring a title in favour of the petitioners, who are in unauthorized possession. Liberty was granted to the petitioners to revive the writ petition in case the sale transaction does not mature. After revival of the petition, many opportunities were granted to the petitioners, who wanted to explore the possibility of settlement, which was ultimately arrived at on payment of `5000/- per sq. yards for the land in dispute and even dates were given to the petitioners to show their bona fides by depositing at least 25% of the amount demanded by the Municipal Committee but the petitioners did not even deposit the said amount. In this view of the matter, we are of the considered opinion that the petitioners do not deserve any leniency as their concerted efforts are to delay the disposal of the writ petition so as to perpetuate their illegal and unauthorized possession over the Municipal land which is worth crores of rupees. In view thereof, we do not find any merit in the Ist petition and hence the same is hereby dismissed. The IInd petition, which CWP No.11847 of 2002 - 13 - CWP No.10975 of 2009 actually depends upon the result of Ist petition, as it pertains to an order passed in execution of the order of eviction, is also hereby dismissed. Lastly, the application namely, CM No.5185 of 2012, which is filed by Smt. Krishna Malik, Municipal Councillor, is hereby dismissed as the similar application has already been dismissed by a Single Judge of this Court on 15.12.2009. The other application namely, CM No.5186 of 2012, for recalling of order dated 26.5.2011, has become infructuous, in view of the dismissal of the writ petition and is decided accordingly. (RAKESH KUMAR JAIN) JUDGE (RAJIVE BHALLA) JUDGE APRIL 19, 2012 Vivek