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W.P. (Crl.) 1771/2022

Decided On: 03.03.2023

Appellants: Rushali Khera Vs. Respondent: State Govt. of NCT of Delhi and Ors.

Hon'ble Judges/Coram:
Amit Mahajan


Amit Mahajan, J.

1. The present writ petition has been filed seeking the following reliefs:

"(a) Allow the Present Writ Petition.

(b) Issue a writ of Mandamus or any other writ/order/direction directing the Respondent No. 4 to immediately cancel the impugned conveyance deed dated 16.09.2014 and declare it to be null and void.

(c) Issue a writ of Mandamus or any other writ/order/direction directing the Respondent No. 4 to conduct an enquiry as to the involvement of the officials of DDA in connivance with Respondent no. 5 & 6 to execute impugned conveyance deed."

2. Petitioner claims that the respondents, through illegal and fraudulent means, have made false and fabricated documents. It is claimed that Respondents Nos. 5 and 6 in connivance with DDA, executed a registered Conveyance Deed dated 16.09.2014 (hereinafter 'the impugned deed') of the property bearing No. C-53, First Floor, New Sabji Mandi, Azadpur, Delhi 110033 (hereinafter 'the disputed property') in their favour.

3. Petitioner claims that he was in possession of the disputed property for almost 35 years but has been dispossessed by Respondents Nos. 5 and 6, who are claiming to be the owners (on the basis of the impugned deed).

4. Petitioner filed a suit under Section 6 of the Specific Relief Act against the Respondents Nos. 5 and 6 for recovery of possession of the disputed property. The respondents filed a written statement and relied upon the alleged forged documents, in support of their possession over the disputed property. It is pointed out that the petitioner has also filed an application under Section 340 Cr.P.C., alleging forgery, which is pending consideration before the learned Trial Court.

5. Learned counsel for the Petitioner submits that the Respondent No. 4/DDA has issued the impugned deed on the basis of the alleged forged and fabricated documents. He further submits that a representation dated 28th January, 2022 has been given to the Vice Chairman of the DDA for cancellation of the Conveyance Deed dated 16.09.2014.

6. Learned counsel further submits that petitioner has given Police Complaint dated 11.02.2022 to the Deputy Commissioner of Police (EOW) for registration of FIR. However, no action has been taken till date.

7. As noted above, the petitioner has already filed a civil suit in relation to the possession of the disputed property and the same is pending consideration before the concerned Civil Court. It is an admitted fact that Respondents Nos. 5 and 6 are contesting the said suit and have relied upon the alleged forged and fabricated documents in support of their case.

8. The Courts have time and again held that the remedy under Article 226 of the Constitution of India is not to be invoked for the purpose of adjudication of disputed questions of facts of such nature which would require elaborate evidence to be adduced and may involve the cross-examination of witnesses. Courts, while exercising jurisdiction under Article 226 of the Constitution of India cannot annul the registered document on the ground of fraud and misrepresentation. The same are mixed questions of fact and law. The party always have a remedy to approach the competent Civil Court and file an appropriate suit for such relief.

9. The Hon'ble Apex Court in Chairman, Grid Corporation of Orissa Ltd. (GRIDCO) & Others v. Sukamani Das (SMT) & Another: MANU/SC/0572/1999 : (1999) 7 SCC 298, held as under:

"6. In our opinion, the High Court committed an error in entertaining the writ petitions even though they were not fit cases for exercising power under Article 226 of the Constitution. The High Court went wrong in proceeding on the basis that as the deaths had taken place because of electrocution as a result of the deceased coming into contact with snapped live wires of the electric transmission lines of the appellants, that "admittedly/prima facie amounted to negligence on the part of the appellants". The High Court failed to appreciate that all these cases were actions in tort and negligence was required to be established firstly by the claimants. The mere fact that the wire of the electric transmission line belonging to Appellant 1 had snapped and the deceased had come in contact with it and had died was not by itself sufficient for awarding compensation. It also required to be examined whether the wire had snapped as a result of any negligence of the appellants and under which circumstances the deceased had come in contact with the wire. In view of the specific defences raised by the appellants in each of these cases they deserved an opportunity to prove that proper care and precautions were taken in maintaining the transmission lines and yet the wires had snapped because of circumstances beyond their control or unauthorised intervention of third parties or that the deceased had not died in the manner stated by the petitioners. These questions could not have been decided properly on the basis of affidavits only. It is the settled legal position that where disputed questions of facts are involved a petition under Article 226 of the Constitution is not a proper remedy. The High Court has not and could not have held that the disputes in these cases were raised for the sake of raising them and that there was no substance therein. The High Court should have directed the writ petitioners to approach the civil court as it was done in OJC No. 5229 of 1995."

(Emphasis supplied)

10. The Petitioner, in the present case, has already filed a civil suit, raising the issue of possession being taken from him on the basis of alleged forged and fabricated documents. The issue, by its very nature, involves disputed questions of fact which would require leading of evidence and cross-examination of the witnesses.

11. The petitioner having already availed the remedy of filing a civil suit, cannot be allowed to maintain a writ petition involving the same issues which are pending adjudication before the learned Trial Court.

12. Thus, a writ of Mandamus directing Respondent No. 4/DDA to cancel the impugned Conveyance Deed dated 16.09.2014, in the opinion of this Court, cannot be issued.

13. It is noticed that the Conveyance Deed contains a clause which states that "If it is discovered at any stage that this deed has been obtained by suppression of any fact or by any mis-statement, mis-representation or fraud, then this deed shall become void at the option of vendor, who shall have the right to cancel this deed and forfeit the consideration paid by the purchaser. The decision of the vendor in this regard shall be final and binding upon the purchaser and shall not be called in question in any proceedings".

14. It is not in dispute that the petitioner has already given a representation to the DDA, pointing out the alleged illegalities. It is expected that the Respondent No. 4/DDA would take a decision on the representation dated 28.01.2022 in an expeditious manner in accordance with the rules and not later than four weeks.

15. In view of the above, the writ petition is disposed of with a direction to the Respondent No. 4/DDA to decide the representation dated 28.01.2022 by passing a speaking order, within a period of four weeks.

16. During the course of argument, it was contended that a complaint was given to the police, however, no action has been taken. The petitioner is free to avail all such remedies as may be available in that regard.

17. The petitioner is also free to avail any other remedies as may be available to him in accordance with law for the purpose of declaration of the Conveyance Deed dated 16.09.2014, as null and void.

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