*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 19th April, 2011
+ W.P.(C) 11900/2009
KHURJI DEVI ..... Petitioner
Through: Mr. R.K. Saini & Mr. Sitab Ali
Chaudhary, Advocates
Versus
MCD & ORS. ..... Respondents
Through: Mr. Ajay Arora, Advocate for
MCD.
Mr. Kapil Gupta, Advocate for R-4.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? No
2. To be referred to the reporter or not? No
3. Whether the judgment should be reported No
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The petitioner claims to be the owner of property No.WZ-110-B,
admeasuring 85 sq. yards, in the Colony of Sant Garh, M.B.S. Nagar, New
Delhi, an unauthorized regularized colony of Delhi. The petitioner bases
her title on a Sale Deed dated 18 th January, 2008 and further claims that at
W.P.(C) 11900/2009 Page 1 of 6
the time of purchase by her, the aforesaid property was already built up;
reliance is also placed on ration card and electricity bills of the earlier
occupants of the property. It is further the case of the petitioner that when
she after purchase commenced the works of repairs / renovation on the
property, objection thereto was taken by the respondent No.4 Sh. J.S.
Vohra in occupation of adjoining property and a civil suit was also filed by
the respondent No.4 impleading the petitioner and the MCD, to restrain the
petitioner from making illegal construction on the property and to
command the MCD to take action with respect to the unauthorized
construction being raised by the petitioner; it was the case of the
respondent No.4 in the said plaint that the said plot of land was municipal
land and in the Layout Plan of the locality earmarked for a Health Centre.
2. It is further the case of the petitioner that the respondent MCD and
its officials respondent Nos.2 and 3 without any notice to the petitioner and
without in any manner verifying the position with respect to the aforesaid
property, on 6th February, 2009 suddenly demolished the construction on
the said property and fenced the land with a barb wire and put up a sign
W.P.(C) 11900/2009 Page 2 of 6
board thereon proclaiming the same to be belonging to MCD and meant for
a Health Center. Upon the representations of the petitioner to the MCD not
meeting with any success, the present writ petition was filed for quashing
the action taken on 6th February, 2009 of demolition and dispossession of
the petitioner from the property / land aforesaid and for restraining the
MCD from interfering in any manner with the possession and enjoyment of
the petitioner of the said land. Relief of compensation against the MCD
was also claimed.
3. Notice of the petition was issued and vide interim order dated 10 th
November, 2009 which continues to be in force, the respondents were
directed to maintain the status quo qua title, possession and construction on
the property.
4. The respondent No.1 MCD and the respondent No.4 have filed
counter affidavits in which they have reiterated that the land belongs to the
respondent No.1 MCD and is shown in the Layout Plan as meant for a
Health Center and that the Sale Deed relied upon by the petitioner does not
pertain to the said property / land and the petitioner was an encroacher over
W.P.(C) 11900/2009 Page 3 of 6
public land and has been accordingly evicted. It further transpires that the
respondent No.4, after the action aforesaid on 6 th February, 2009 did not
pursue the suit preferred by him which stands dismissed in default.
5. The counsels for the parties have been heard. The counsel for the
petitioner with reference to registered Sale Deed in favour of the petitioner
and Sections 198 & 199 of the Delhi Municipal Corporation Act, 1957 has
contended that once the title to the aforesaid land is shown to have been
vested in the petitioner under the Sale Deed aforesaid, the MCD could
have taken possession thereof from the petitioner only by acquisition
thereof and not forcibly as has been done. It is further contended that
though the MCD in its counter affidavit has claimed the land as belonging
to it but has not disclosed as to how it became the owner of the property.
Reliance is placed on the judgment dated 30 th October, 2003 of this Court
in C.W.P. No.481/1997 titled Atma Ram Jain Vs. MCD & Ors.
contending that this Court in the said judgment in similar facts has held the
action of the MCD as illegal and without jurisdiction and restrained the
MCD from interfering with the possession of the petitioner therein.
W.P.(C) 11900/2009 Page 4 of 6
6. The counsel for the respondent No.1 MCD has contended that the
petitioner has in the present petition not claimed the relief of declaration of
her alleged title to the property nor has sought possession which admittedly
has been taken over by the respondent No.1 MCD and thus the writ
petition is not maintainable. It is further averred that the action dated 6 th
February, 2009 of the respondent No.1 MCD was in accordance with the
Zonal Plan.
7. The counsel for the respondent No.4 has argued that the petitioner
has not challenged / impugned the Zonal Plan in which the land is
admittedly shown as earmarked for a Health Center and is thus not entitled
to the relief.
8. In view of the disputes raised in the counter affidavit of the
respondent No.1 MCD as to the title of the petitioner to the land/property
with respect to which action was taken on 6 th February, 2009 and to the
identity of the property mentioned in the Sale Deed relied upon by the
petitioner, the relief claimed by the petitioner in this writ petition cannot be
granted without a factual enquiry on the said aspects and for which factual
W.P.(C) 11900/2009 Page 5 of 6
enquiry this writ petition is not the appropriate fora. Such factual enquiry
would entail examination and cross examination of witnesses and may be
also a demarcation/survey for determining the identity of the land. As far
as the reliance placed by the petitioner on the judgment of this Court in
Atma Ram Jain (supra) is concerned, the writ in that case was preceded by
a suit for declaration of ownership and possession of the land and which
suit was decided against the MCD and in execution of decree in which suit,
the possession of the land had been taken from the MCD. The Court also
expressly noted that there was no dispute in that case as to the identity or
demarcation of the land. It was in these facts that it was observed that
MCD without disclosing any title to the land could not have taken action
with respect thereto. The facts in the present case are not the same and
thus the judgment in Atma Ram Jain has no application.
9. The writ petition is accordingly dismissed. However, no order as to
costs.
RAJIV SAHAI ENDLAW
(JUDGE)
APRIL 19th, 2011
‘gsr’
W.P.(C) 11900/2009 Page 6 of 6