1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.10670 OF 2018
(Arising out of SLP(C)No.11206 of 2018)
GHAZIABAD DEVELOPMENT … APPELLANTS
AUTHORITY & ORS.
Versus
MACHHLA DEVI … RESPONDENT
WITH
CIVIL APPEAL No.10671 OF 2018
(Arising out of SLP(C)No.12881 of 2018)
J U D G M E N T
N.V.RAMANA, J.
Civil Appeal No. 10670 of 2018
(arising out of SLP(C) No.11206 of 2018)
1. Leave granted.
2. Heard Mr. Rakesh Uttamchandra Upadhyay, learned
counsel appearing on behalf of the appellants and Mr. K.
NONREPORTABLE
2
Radhakrishnan, learned senior counsel appearing on behalf of the
respondent.
3. This appeal is directed against order dated 21.03.2018
passed by the High Court of Judicature at Allahabad in Writ
Petition(C) No.7928 of 2018 wherein without issuance of notice to
the Ghaziabad Development Authority (hereinafter referred to as the
“GDA”) an order was passed in the favour of Machhla Devi
(hereinafter referred to as the “allottee”). It is worthwhile to be
noted that the impugned order in essence nullifies the detailed
order of cancellation of allotment passed by the coordinate Bench
of the same High Court dated 17.05.2016 in Writ Petition
(C)No.28834 of 2004.
Facts in brief
4. The facts giving rise to the present dispute are that GDA
launched a scheme known as Shastri Nagar Housing Scheme. The
allottee had applied for a High Income Group Duplex “A” Category of
house under hirepurchase scheme. Vide letter dated 05.10.1994,
the allottee was informed of the allotment of House No.E376. The
estimated cost of the house was mentioned as Rs.4,33,248/. The
allottee had already paid the registration amount of Rs.5,000/ and
the balance registration amount of Rs.38,325/ was required to be
3
deposited within a week from the issuance of letter dated
05.10.1994 by which the allotment was made. The remaining
amount was to be paid in accordance with a payment schedule
which had to be notified at a later date. The terms and conditions
of allotment letter included that in the eventuality of default in
payment to GDA within the prescribed time limit, a penal interest of
21% per annum would follow. Further in the eventuality of a further
default for a period of three months from the due date along with
penal interest, the allotment shall be treated as cancelled. It was
also mentioned that possession could be taken pursuant to 50% of
payment of the final cost of the house. The allottee deposited the
amount of Rs.38,325/ on 17.10.1994. It is to be noted that the
respondent thereafter deposited instalments without following any
schedule and a lump sum amount from time to time was deposited
as underS.No.
Date Amount
1 19.12.1994 23,000
2 13.01.1995 10,000
3 30.08.1995 35,000
4 08.04.1996 20,000
5 11.09.1996 35,000
6 16.05.1997 35,000
7 18.05.1998 30,000
4
8 19.05.1998 30,000
9 19.01.2002 45,000
5. The total amount payable by the allottee increased as the
balance amount of cost of the house included interest and for nonpayment
of the same in time also attracted a penal interest at the
rate of 21%. The fact on record as alleged is that the respondent
failed to make payment of substantial amount to the GDA. It is
alleged that the husband of the respondent – Chandra Pal Singh
was posted in U.P. Police and by influence of his position, she
continued in unauthorised possession of said house.
6. In light of the nonpayment of any amount by the allottee
after 19.05.1998 for a period of almost three and half years, GDA
treated the allotment cancelled. However, on the representation
made by the allottee subsequently, a direction was made by GDA
dated 07.05.2004 regarding depositing of Rs.20,00,000/ (Rupees
twenty lakhs) within 15 days for the restoration of the cancelled
allotment.
7. The respondent herein challenged the said cancellation of
allotment by filing Writ Petition (C) No. 28834 of 2004 before the
Allahabad High Court. The Allahabad High Court vide interim order
5
dated 29.07.2004 directed the GDA not to take coercive measures
for 6 weeks, if the respondent deposits Rs.2 lakhs. This writ petition
was dismissed finally by a detailed order dated 17.05.2016 with
cost of Rs.5,000/ on the respondent herein.
8. Despite the final order of the High Court, the allottee
continued with the unauthorized possession of the property.
Accordingly, the GDA issued a letter to the District Magistrate,
Ghaziabad dated 10.01.2018 for the eviction of the allottee from the
property in question.
9. The respondent filed Writ Petition (C) No.7928 of 2018
before the Allahabad High Court for prayer of Writ of Certiorari for
quashing the said letter dated 10.01.2018 and mandamus for not
dispossessing her from the property in question. Adjudicating upon
the said matter, the Allahabad High Court disposed of the writ
petition by granting material relief to the allottee without issuance
of notice to GDA on the first material date of hearing itself. This
disposal of writ petition by the Allahabad High Court is in essence a
nullification of the order dated 17.05.2016 of its own coordinate
Bench in Writ Petition (C) No. 28834 of 2004. The High Court
passed directions for acceptance of amount by the GDA and thereby
regularized the allotment, the cancellation of which had been
6
upheld by a coordinate Bench of the same High Court on
17.05.2016. It is against this writ petition, that special leave
petitions have been filed by both the GDA and the allottee as
Special Leave Petition (C) No. 11206 of 2018 and 12881 of 2018
respectively.
Contentions on behalf of the appellants
10. The broad contentions raised by the Ld. Counsel on
behalf of GDA are threefold.
11. Firstly, it is contended that via the detailed judgement of
17.05.2016 passed by a two Judge bench of the Allahabad High
Court in Writ Petition Civil No. 28834 of 2004, the cancellation of
allotment was upheld, and, thus, it attained finality. Hence, it was
wrong and illegal on the part of the Allahabad High Court to
interfere in the matter and pass directions to accept the monetary
amount which is tantamount to regularization of the allotment.
12. Secondly, the High Court ought to have dismissed the
Writ Petition No.7928 of 2018 as the allottee had approached it
with unclean hands. The allottee had remained in unauthorized
possession of the property in question for 14 long years by virtue
of the influence of her husband who is in Uttar Pradesh Police.
13. Thirdly, the impugned order was passed without
7
issuance of notice to the GDA on the first material date of hearing,
and, merely on the ground of statements made by the counsel.
They assert that GDA had not issued any instructions regarding
compromise of the matter and had notices been issued, the truth
could have been discerned.
Contentions on behalf of the respondent
14. On the other hand, the learned counsel on behalf of the
allottee has made twofold submissions.
15. Firstly, it is a settled law that a person in peaceful and
settled possession cannot be forcefully dispossessed. The allottee
claims its possession by virtue of allotment letter dated
05.10.1994 which was lawfully issued by the GDA. Accordingly, it
is pleaded that there could be no dispossession except by due
process of law.
16. Secondly, it is contended that the appellants owing to
their own act of negligence, arbitrarily demanded exorbitant price
of the property, and, thereafter forcibly sought to dispossess the
allottee.
REASONING
17. It is abundantly clear that the allottee was allotted
8
House No. E376 under the hirepurchase scheme vide letter
dated 05.10.1994 by the GDA. The allottee’s conduct of delayed
payment with respect to the allotment is evident from the fact that
even the balance registration amount of Rs. 38,325/ which was
required to be deposited within a week from the issuance of letter
dated 05.10.1994 was actually deposited on 17.10.1994. Further,
the deposits made thereafter, were also done so without following
any schedule as is evident from the facts stated hereinabove in
para No.4. In fact, the last deposit of the balance amount abovementioned
was made almost after three and half years which led
to cancellation of allotment by the GDA. It is only on the
subsequent representation being made to the GDA that a direction
was issued to deposit Rs.20,00,000/ within 15 days for the
restoration of the cancelled allotment. In the light of this factual
matrix it becomes clear that the allottee has not honored the
stipulations of the hirepurchase scheme under which allotment of
House No. E376 was made to her.
18. Pursuant to this came the first round of litigation
wherein the Writ Petition (Civil) No.28834 of 2004 was filed in the
Allahabad High Court by the allottee, challenging the order of GDA
seeking payment of Rs.20,00,000/ within 15 days for the
9
restoration of the cancelled allotment. This writ petition eventually
culminated in an order dated 17.05.2016 wherein the same was
dismissed for having no merit after a detailed reasoning and
imposition of cost of Rs.5,000/ on the allottee. Despite the final
order of the High Court, the allottee continued with the
unauthorized possession of the property. This is indicative of the
lack of bona fides on part of the allottee.
19. Accordingly, the GDA issued a letter to the District
Magistrate, Ghaziabad dated 10.01.2018 for the eviction of the
allottee from the property in question. It is pursuant to this letter,
that the second round of litigation started.
20. The allottee’s assertion is twofold. Firstly, the GDA
owing to its act of negligence, arbitrarily demanded exorbitant
price of the property and thereafter forcibly sought to dispossess
the allottee and, secondly, it is a settled proposition of law that a
person in peaceful and settled possession cannot be forcefully
dispossessed which can only be done by following due process of
law. The latter is very much true. However, it is to be noted that,
the allottee claims possession by virtue of allotment letter which
was lawfully issued by the GDA dated 05.10.1994. It is this very
letter that incorporates the terms and conditions that the amount
10
is to be paid within the prescribed time limits failing which a penal
interest at the rate of 21% would be charged, and, further, if
default continues for a further period of three months from due
date, inclusive of penal interest, then the allotment shall be
treated as cancelled. The conduct of the allottee as evident from
paragraphs 17 and 18 not only fall foul of the terms and
conditions envisaged under the allotment letter issued under the
hirepurchase scheme but also shows that she has approached
the Court with unclean hands. With reference to the possession of
the allottee, the eviction was sought pursuant to the order of the
Allahabad High Court dated 17.05.2016 which upheld the
cancellation of the allotment, and, thus, fulfils the due process of
law requirement.
21. It is wellsettled principle of law that unlawful
possession of public property without having paid for the same
would tantamount to unjust enrichment and would be against
public interest. We find support for the abovementioned
proposition in Delhi Development Authority v. Anant Raj
Agencies (P) Ltd.
1
wherein this Hon’ble Court speaking by Justice
V. Gopala Gowda has noted that,
1 . (2016) 11 SCC 406
11
“38. The original lessee has been in unauthorised
occupation of the property in question for around
30 years (till he executed a sale deed in favour of
the respondent) and the respondent has been
illegally inducted in possession of the same, by
the original lessee, who himself was in
unauthorised possession of the property. For
around 17 years the respondent has been
enjoying the property in question without any
right, title or interest. Thus, both are liable to
pay the damages for unauthorised occupation
and DDA is empowered under Section 7 of the
Public Premises (Eviction of Unauthorised
Occupants) Act, 1971 to claim damages from
them. We record this finding in exercise of our
appellate power in view of our finding and
reasons assigned in this judgment holding that
the concurrent finding is not only erroneous but
also suffers from error in law in granting decree
of permanent injunction in favour of the
respondent who is not entitled in law for the
same. There is a miscarriage of justice in
granting the relief by the courts below in favour
of the respondent. Further, keeping in view the
public interest involved in this case and
particularly having regard to the peculiar facts
and circumstances of the case we have to allow
12
this appeal of DDA.
39. Since we have answered the points framed in
this appeal in favour of the appellant DDA, we
further, direct DDA to take possession of the
property immediately without resorting to
eviction proceedings, as the respondent has been
in unauthorised possession of the property in
question, by virtue of erroneous judgments
passed by the courts below. The respondent has
been unlawfully enjoying the public property
which would amount to unlawful enrichment
which is against the public interest.”
(emphasis supplied)
22. These observations were made in the context of a lease
being granted by the Delhi Development Authority getting
terminated by efflux of time despite which the lessee continued in
unauthorized possession of the same. The same principle is
applicable in our context wherein allotment of a house is made by
GDA. The unauthorized occupation of public property is contrary
to public interest. Further, the manner in which it is done by
multiple rounds of protracted litigation shocks our judicial
conscience wherein unauthorized possession of a public property
of GDA has been continued for over 14 long years. It is nothing
13
but an abuse of process of law.
23. At this juncture, we found that the effect of the disposal
of Writ Petition Civil No.7928 of 2018 by the Allahabad High Court
is in essence a nullification of the order dated 17.05.2016 in Writ
Petition Civil No.28834/04 of its own coordinate Bench. This
approach is highly condemnable as, firstly, it is against judicial
propriety to issue orders contrary to the orders of its own coordinate
Bench, as the same had attained finality. Judicial
discipline mandates respecting of orders of coordinate Benches of
the High Court. Secondly, the manner in which the order is made
without even issuance of notice to the GDA on the first material
date of hearing goes against the cherished Principle of Natural
Justice, audi alteram partem, the right to fair hearing. This is of
immense importance visàvis the assertion of the GDA that it had
not issued any instructions regarding compromise of the matter
that was ordered by the Allahabad High Court in its
abovementioned order. Had the rule of audi alteram partem been
followed and notices issued, the truth could have been discerned.
24. Thus, in light of the observations made above, the
appeal is allowed. The order of the Allahabad High Court in Writ
Petition Civil No.7928 of 2018 dated 21.03.2018 is set aside and it
14
is directed that the allottee be evicted forthwith. The appellants are
at liberty to take the assistance of local police for getting the
peaceful possession of the property in question.
25. There shall be no order as to costs.
Civil Appeal No.10671 of 2018
(arising out of SLP (C) No. 12881 of 2018)
26. Leave granted.
27. As the instant appeal is filed against the same
impugned order dated 21.03.2018 passed by the High Court of
Judicature at Allahabad in Writ Petition (C) No.7928 of 2018, the
same is also disposed of in terms of the order passed in C.A.
No.10670 of 2018 (arising out of SLP(C)No.11206 of 2018).
28. There shall be no order as to costs.
...........................J.
(N.V. RAMANA)
……………………............................J.
(MOHAN M. SHANTANAGOUDAR)
NEW DELHI;
OCTOBER 23, 2018.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.10670 OF 2018
(Arising out of SLP(C)No.11206 of 2018)
GHAZIABAD DEVELOPMENT … APPELLANTS
AUTHORITY & ORS.
Versus
MACHHLA DEVI … RESPONDENT
WITH
CIVIL APPEAL No.10671 OF 2018
(Arising out of SLP(C)No.12881 of 2018)
J U D G M E N T
N.V.RAMANA, J.
Civil Appeal No. 10670 of 2018
(arising out of SLP(C) No.11206 of 2018)
1. Leave granted.
2. Heard Mr. Rakesh Uttamchandra Upadhyay, learned
counsel appearing on behalf of the appellants and Mr. K.
NONREPORTABLE
2
Radhakrishnan, learned senior counsel appearing on behalf of the
respondent.
3. This appeal is directed against order dated 21.03.2018
passed by the High Court of Judicature at Allahabad in Writ
Petition(C) No.7928 of 2018 wherein without issuance of notice to
the Ghaziabad Development Authority (hereinafter referred to as the
“GDA”) an order was passed in the favour of Machhla Devi
(hereinafter referred to as the “allottee”). It is worthwhile to be
noted that the impugned order in essence nullifies the detailed
order of cancellation of allotment passed by the coordinate Bench
of the same High Court dated 17.05.2016 in Writ Petition
(C)No.28834 of 2004.
Facts in brief
4. The facts giving rise to the present dispute are that GDA
launched a scheme known as Shastri Nagar Housing Scheme. The
allottee had applied for a High Income Group Duplex “A” Category of
house under hirepurchase scheme. Vide letter dated 05.10.1994,
the allottee was informed of the allotment of House No.E376. The
estimated cost of the house was mentioned as Rs.4,33,248/. The
allottee had already paid the registration amount of Rs.5,000/ and
the balance registration amount of Rs.38,325/ was required to be
3
deposited within a week from the issuance of letter dated
05.10.1994 by which the allotment was made. The remaining
amount was to be paid in accordance with a payment schedule
which had to be notified at a later date. The terms and conditions
of allotment letter included that in the eventuality of default in
payment to GDA within the prescribed time limit, a penal interest of
21% per annum would follow. Further in the eventuality of a further
default for a period of three months from the due date along with
penal interest, the allotment shall be treated as cancelled. It was
also mentioned that possession could be taken pursuant to 50% of
payment of the final cost of the house. The allottee deposited the
amount of Rs.38,325/ on 17.10.1994. It is to be noted that the
respondent thereafter deposited instalments without following any
schedule and a lump sum amount from time to time was deposited
as underS.No.
Date Amount
1 19.12.1994 23,000
2 13.01.1995 10,000
3 30.08.1995 35,000
4 08.04.1996 20,000
5 11.09.1996 35,000
6 16.05.1997 35,000
7 18.05.1998 30,000
4
8 19.05.1998 30,000
9 19.01.2002 45,000
5. The total amount payable by the allottee increased as the
balance amount of cost of the house included interest and for nonpayment
of the same in time also attracted a penal interest at the
rate of 21%. The fact on record as alleged is that the respondent
failed to make payment of substantial amount to the GDA. It is
alleged that the husband of the respondent – Chandra Pal Singh
was posted in U.P. Police and by influence of his position, she
continued in unauthorised possession of said house.
6. In light of the nonpayment of any amount by the allottee
after 19.05.1998 for a period of almost three and half years, GDA
treated the allotment cancelled. However, on the representation
made by the allottee subsequently, a direction was made by GDA
dated 07.05.2004 regarding depositing of Rs.20,00,000/ (Rupees
twenty lakhs) within 15 days for the restoration of the cancelled
allotment.
7. The respondent herein challenged the said cancellation of
allotment by filing Writ Petition (C) No. 28834 of 2004 before the
Allahabad High Court. The Allahabad High Court vide interim order
5
dated 29.07.2004 directed the GDA not to take coercive measures
for 6 weeks, if the respondent deposits Rs.2 lakhs. This writ petition
was dismissed finally by a detailed order dated 17.05.2016 with
cost of Rs.5,000/ on the respondent herein.
8. Despite the final order of the High Court, the allottee
continued with the unauthorized possession of the property.
Accordingly, the GDA issued a letter to the District Magistrate,
Ghaziabad dated 10.01.2018 for the eviction of the allottee from the
property in question.
9. The respondent filed Writ Petition (C) No.7928 of 2018
before the Allahabad High Court for prayer of Writ of Certiorari for
quashing the said letter dated 10.01.2018 and mandamus for not
dispossessing her from the property in question. Adjudicating upon
the said matter, the Allahabad High Court disposed of the writ
petition by granting material relief to the allottee without issuance
of notice to GDA on the first material date of hearing itself. This
disposal of writ petition by the Allahabad High Court is in essence a
nullification of the order dated 17.05.2016 of its own coordinate
Bench in Writ Petition (C) No. 28834 of 2004. The High Court
passed directions for acceptance of amount by the GDA and thereby
regularized the allotment, the cancellation of which had been
6
upheld by a coordinate Bench of the same High Court on
17.05.2016. It is against this writ petition, that special leave
petitions have been filed by both the GDA and the allottee as
Special Leave Petition (C) No. 11206 of 2018 and 12881 of 2018
respectively.
Contentions on behalf of the appellants
10. The broad contentions raised by the Ld. Counsel on
behalf of GDA are threefold.
11. Firstly, it is contended that via the detailed judgement of
17.05.2016 passed by a two Judge bench of the Allahabad High
Court in Writ Petition Civil No. 28834 of 2004, the cancellation of
allotment was upheld, and, thus, it attained finality. Hence, it was
wrong and illegal on the part of the Allahabad High Court to
interfere in the matter and pass directions to accept the monetary
amount which is tantamount to regularization of the allotment.
12. Secondly, the High Court ought to have dismissed the
Writ Petition No.7928 of 2018 as the allottee had approached it
with unclean hands. The allottee had remained in unauthorized
possession of the property in question for 14 long years by virtue
of the influence of her husband who is in Uttar Pradesh Police.
13. Thirdly, the impugned order was passed without
7
issuance of notice to the GDA on the first material date of hearing,
and, merely on the ground of statements made by the counsel.
They assert that GDA had not issued any instructions regarding
compromise of the matter and had notices been issued, the truth
could have been discerned.
Contentions on behalf of the respondent
14. On the other hand, the learned counsel on behalf of the
allottee has made twofold submissions.
15. Firstly, it is a settled law that a person in peaceful and
settled possession cannot be forcefully dispossessed. The allottee
claims its possession by virtue of allotment letter dated
05.10.1994 which was lawfully issued by the GDA. Accordingly, it
is pleaded that there could be no dispossession except by due
process of law.
16. Secondly, it is contended that the appellants owing to
their own act of negligence, arbitrarily demanded exorbitant price
of the property, and, thereafter forcibly sought to dispossess the
allottee.
REASONING
17. It is abundantly clear that the allottee was allotted
8
House No. E376 under the hirepurchase scheme vide letter
dated 05.10.1994 by the GDA. The allottee’s conduct of delayed
payment with respect to the allotment is evident from the fact that
even the balance registration amount of Rs. 38,325/ which was
required to be deposited within a week from the issuance of letter
dated 05.10.1994 was actually deposited on 17.10.1994. Further,
the deposits made thereafter, were also done so without following
any schedule as is evident from the facts stated hereinabove in
para No.4. In fact, the last deposit of the balance amount abovementioned
was made almost after three and half years which led
to cancellation of allotment by the GDA. It is only on the
subsequent representation being made to the GDA that a direction
was issued to deposit Rs.20,00,000/ within 15 days for the
restoration of the cancelled allotment. In the light of this factual
matrix it becomes clear that the allottee has not honored the
stipulations of the hirepurchase scheme under which allotment of
House No. E376 was made to her.
18. Pursuant to this came the first round of litigation
wherein the Writ Petition (Civil) No.28834 of 2004 was filed in the
Allahabad High Court by the allottee, challenging the order of GDA
seeking payment of Rs.20,00,000/ within 15 days for the
9
restoration of the cancelled allotment. This writ petition eventually
culminated in an order dated 17.05.2016 wherein the same was
dismissed for having no merit after a detailed reasoning and
imposition of cost of Rs.5,000/ on the allottee. Despite the final
order of the High Court, the allottee continued with the
unauthorized possession of the property. This is indicative of the
lack of bona fides on part of the allottee.
19. Accordingly, the GDA issued a letter to the District
Magistrate, Ghaziabad dated 10.01.2018 for the eviction of the
allottee from the property in question. It is pursuant to this letter,
that the second round of litigation started.
20. The allottee’s assertion is twofold. Firstly, the GDA
owing to its act of negligence, arbitrarily demanded exorbitant
price of the property and thereafter forcibly sought to dispossess
the allottee and, secondly, it is a settled proposition of law that a
person in peaceful and settled possession cannot be forcefully
dispossessed which can only be done by following due process of
law. The latter is very much true. However, it is to be noted that,
the allottee claims possession by virtue of allotment letter which
was lawfully issued by the GDA dated 05.10.1994. It is this very
letter that incorporates the terms and conditions that the amount
10
is to be paid within the prescribed time limits failing which a penal
interest at the rate of 21% would be charged, and, further, if
default continues for a further period of three months from due
date, inclusive of penal interest, then the allotment shall be
treated as cancelled. The conduct of the allottee as evident from
paragraphs 17 and 18 not only fall foul of the terms and
conditions envisaged under the allotment letter issued under the
hirepurchase scheme but also shows that she has approached
the Court with unclean hands. With reference to the possession of
the allottee, the eviction was sought pursuant to the order of the
Allahabad High Court dated 17.05.2016 which upheld the
cancellation of the allotment, and, thus, fulfils the due process of
law requirement.
21. It is wellsettled principle of law that unlawful
possession of public property without having paid for the same
would tantamount to unjust enrichment and would be against
public interest. We find support for the abovementioned
proposition in Delhi Development Authority v. Anant Raj
Agencies (P) Ltd.
1
wherein this Hon’ble Court speaking by Justice
V. Gopala Gowda has noted that,
1 . (2016) 11 SCC 406
11
“38. The original lessee has been in unauthorised
occupation of the property in question for around
30 years (till he executed a sale deed in favour of
the respondent) and the respondent has been
illegally inducted in possession of the same, by
the original lessee, who himself was in
unauthorised possession of the property. For
around 17 years the respondent has been
enjoying the property in question without any
right, title or interest. Thus, both are liable to
pay the damages for unauthorised occupation
and DDA is empowered under Section 7 of the
Public Premises (Eviction of Unauthorised
Occupants) Act, 1971 to claim damages from
them. We record this finding in exercise of our
appellate power in view of our finding and
reasons assigned in this judgment holding that
the concurrent finding is not only erroneous but
also suffers from error in law in granting decree
of permanent injunction in favour of the
respondent who is not entitled in law for the
same. There is a miscarriage of justice in
granting the relief by the courts below in favour
of the respondent. Further, keeping in view the
public interest involved in this case and
particularly having regard to the peculiar facts
and circumstances of the case we have to allow
12
this appeal of DDA.
39. Since we have answered the points framed in
this appeal in favour of the appellant DDA, we
further, direct DDA to take possession of the
property immediately without resorting to
eviction proceedings, as the respondent has been
in unauthorised possession of the property in
question, by virtue of erroneous judgments
passed by the courts below. The respondent has
been unlawfully enjoying the public property
which would amount to unlawful enrichment
which is against the public interest.”
(emphasis supplied)
22. These observations were made in the context of a lease
being granted by the Delhi Development Authority getting
terminated by efflux of time despite which the lessee continued in
unauthorized possession of the same. The same principle is
applicable in our context wherein allotment of a house is made by
GDA. The unauthorized occupation of public property is contrary
to public interest. Further, the manner in which it is done by
multiple rounds of protracted litigation shocks our judicial
conscience wherein unauthorized possession of a public property
of GDA has been continued for over 14 long years. It is nothing
13
but an abuse of process of law.
23. At this juncture, we found that the effect of the disposal
of Writ Petition Civil No.7928 of 2018 by the Allahabad High Court
is in essence a nullification of the order dated 17.05.2016 in Writ
Petition Civil No.28834/04 of its own coordinate Bench. This
approach is highly condemnable as, firstly, it is against judicial
propriety to issue orders contrary to the orders of its own coordinate
Bench, as the same had attained finality. Judicial
discipline mandates respecting of orders of coordinate Benches of
the High Court. Secondly, the manner in which the order is made
without even issuance of notice to the GDA on the first material
date of hearing goes against the cherished Principle of Natural
Justice, audi alteram partem, the right to fair hearing. This is of
immense importance visàvis the assertion of the GDA that it had
not issued any instructions regarding compromise of the matter
that was ordered by the Allahabad High Court in its
abovementioned order. Had the rule of audi alteram partem been
followed and notices issued, the truth could have been discerned.
24. Thus, in light of the observations made above, the
appeal is allowed. The order of the Allahabad High Court in Writ
Petition Civil No.7928 of 2018 dated 21.03.2018 is set aside and it
14
is directed that the allottee be evicted forthwith. The appellants are
at liberty to take the assistance of local police for getting the
peaceful possession of the property in question.
25. There shall be no order as to costs.
Civil Appeal No.10671 of 2018
(arising out of SLP (C) No. 12881 of 2018)
26. Leave granted.
27. As the instant appeal is filed against the same
impugned order dated 21.03.2018 passed by the High Court of
Judicature at Allahabad in Writ Petition (C) No.7928 of 2018, the
same is also disposed of in terms of the order passed in C.A.
No.10670 of 2018 (arising out of SLP(C)No.11206 of 2018).
28. There shall be no order as to costs.
...........................J.
(N.V. RAMANA)
……………………............................J.
(MOHAN M. SHANTANAGOUDAR)
NEW DELHI;
OCTOBER 23, 2018.
