*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 16th August, 2011
+ W.P.(C) 19506-08/2005
% BHARAT SINGH & ORS. ..... Petitioners
Through: Mr. Ajay Gupta & Mr. Jaswinder S.
Nischal, Advocates.
Versus
D.D.A. & ORS. ..... Respondents
Through: Mr. Amit Mehra, Adv. for Mr. Ajay
Verma, Adv. for R-1 DDA.
Mr. Pushkar Sood with Mr. A.S.
Rao, Advocates for R-3 DMRC.
Mr. Rama Shanker, Adv. for R-4.
AND
+ W.P.(C) 10554/2009 & CM No.1348/2011 (for direction)
% BHARAT SINGH & ANR. ..... Petitioners
Through: Mr. Ajay Gupta & Mr. Jaswinder S.
Nischal, Advocates.
Versus
D.D.A. & ORS. ..... Respondents
Through: Mr. M.K. Singh, Adv. for R-1 DDA.
Mr. Pushkar Sood with Mr. A.S.
Rao, Advocates for R-2 DMRC.
Dr. S.P. Sharma, Adv. for R-3.
Mr. A.K. Singhla, Sr. Adv. with Mr.
Rama Shanker, Adv. for R-4.
W.P.(C)19506-08/2005 & W.P.(C)10554/2009 Page 1 of 12
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may Not necessary
be allowed to see the judgment?
2. To be referred to the reporter or not? Not necessary
3. Whether the judgment should be reported Not necessary
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The three petitioners in W.P.(C) No.19506-08/2005 claim to be
members of an undivided joint Hindu family comprising not only of the
three petitioners but others also who are not before this Court; they further
claim that the said undivided joint Hindu family is entitled to land
admeasuring 8 bighas and 6 biswas falling in Khasra
No.3741/3221/2752/734 in Village-Basai Darapur, New Delhi; they claim
the said land to be their ancestral property; it is however their case that
respondent DDA in September, 2003 demolished the structures existing on
the said land, claiming the land to be of the DDA.
2. The three petitioners further claim that on their request the SDM,
Patel Nagar in October/November, 2003 commenced proceedings for
W.P.(C)19506-08/2005 & W.P.(C)10554/2009 Page 2 of 12
demarcation of the land but the respondents DDA and Delhi Metro Rail
Corporation Ltd. (DMRC) during the demarcation proceedings even
started digging the land claiming that the land was required under the
Rehabilitation Scheme for affected persons at Moti Nagar.
3. The petitioners claim to have earlier filed Civil Writ Petition
No.7451-53/2003 which was disposed of by directing the demarcation
proceedings to be completed. The petitioners claim that the said
demarcation proceedings were completed and in which the land aforesaid
was found to be of the petitioners only. It is further the claim of the
petitioners that notwithstanding the same, DDA neither got the
encroachment which had taken place on the land in the interregnum,
removed from the land nor delivered the possession thereof.
4. W.P.(C) No.19506-08/2005 has been filed seeking mandamus to the
respondents DDA, DMRC and Govt. of NCT of Delhi for delivering
possession of the demarcated 8 bighas and 6 biswas of land to the
petitioners and to prevent encroachments thereon.
W.P.(C)19506-08/2005 & W.P.(C)10554/2009 Page 3 of 12
5. Notice of the said petition was issued. One Mr. Rakesh Mehta
applied for impleadment in W.P.(C) No.19506-08/2005 relying upon the
order in W.P.(C) No.805/2005 preferred by him wherein he had made
claim with respect to land admeasuring 100 sq. yrds in the aforesaid
Khasra numbers. It was his case that the petitioners in the garb of the
relief claimed in W.P.(C) No.19506-08/2005 were seeking to dispossess
him from his land/property.
6. Vide order in W.P.(C) No.19506-08/2005, a report was also called
from the SDM regarding the demarcation proceedings. Such report was
submitted. On 9th May, 2011 the counsel for the DDA informed that the
demarcation carried out by SDM was unacceptable to DDA and objections
to the demarcation carried out had been filed.
7. DDA in its counter affidavit in W.P.(C) No.19506-08/2005 has
pleaded that land admeasuring 5.54 acres adjoining to land in Khasra
No.3741/3221/2752/734 had been transferred to the DDA by the Ministry
of Rehabilitation and possession thereof taken on 16 th April, 1986. It is
however admitted that the land measuring 8 bighas and 6 biswas in Khasra
W.P.(C)19506-08/2005 & W.P.(C)10554/2009 Page 4 of 12
No.3741/3221/2752/734 claimed by the petitioners herein was not included
in the said 5.54 acres of land. DDA has further stated that Jhuggis on the
said 5.54 acres of land were demolished in September 2003 as the same
was required for DMRC. It was stated that none of the structures on the
land of the petitioners was demolished and that the petitioners were in fact
illegally claiming rights over the land of the DDA.
8. The report dated 24 th February, 2009 of demarcation filed by the
SDM shows the entire land to be built-up, either with houses, shops or in
occupation of DMRC.
9. DMRC in its counter affidavit in W.P.(C) No.19506-08/2005 has
stated that it had requested the DDA to provide land at Moti Nagar for its
project and land measuring 5523.38 sq.mts. behind Natraj Cinema was
handed over to DMRC on 21st October, 2003 for the MRTS project.
10. W.P.(C) No.10554/2009 has been filed by two of the three
petitioners in the other writ petition, pleading that since Sh. Rakesh Mehta
aforesaid (impleaded as respondent no.4 in this petition) had applied for
W.P.(C)19506-08/2005 & W.P.(C)10554/2009 Page 5 of 12
impleadment in the other writ petition claiming possession of part of the
land with respect to which the other writ petition was filed, the said
petitioners had realized that the said Sh. Rakesh Mehta had got the land
mutated in his name. Mandamus for correction of revenue records relating
to possession and ownership and declaration of title of the petitioners is
claimed in W.P.(C) No.10554/2009. Notice of the said writ petition was
also issued and pleadings therein have also been completed.
11. The counsel for the DDA has again stated that DDA had preferred
objections to the demarcation report and which are pending consideration
before the SDM, Patel Nagar.
12. The counsel for the petitioners contends that notwithstanding the
demarcation carried out first in 2003 and again in 2009 having found the
land under occupation of DDA and DMRC to be of the petitioners, the
petitioners are without possession till now. It is contended that such
governmental agencies are required to deliver possession once demarcation
has found the land in their possession to be that of petitioners and without
requiring the petitioners to institute proceedings for recovery of
W.P.(C)19506-08/2005 & W.P.(C)10554/2009 Page 6 of 12
possession.
13. The senior counsel for Sh. Rakesh Mehta contends that said Sh.
Rakesh Mehta is concerned with only 700 sq. yrds. out of 8 bighas and 6
biswas of land aforesaid and of which, 200 sq. yrds. is on tehbazari under
MCD and the other 500 sq. yrds. is in the ownership of the said Sh. Rakesh
Mehta.
14. The counsel for the petitioners controverts the aforesaid.
15. As far as the objection of the petitioners to the adjudication of the
objections preferred by the DDA to the demarcation report is concerned,
the same has no merit. Admittedly the law recognizes the procedure of
preferring objections to the demarcation. The senior counsel for Sh.
Rakesh Mehta in this regard invites attention to Rule 34 of the Delhi Land
Revenue Rules, 1962. It is further pointed out by the senior counsel as
well as by the counsel for the DDA that the persons aggrieved from
adjudication of such objections/boundary disputes arising from
demarcation have remedy of appeal to the Assistant Collector and
W.P.(C)19506-08/2005 & W.P.(C)10554/2009 Page 7 of 12
thereafter to the Financial Commissioner. The said process of law cannot
be interfered with.
16. As far as the plea of the petitioners of delay is concerned, the same
can be taken care of by providing for a time bound disposal by the SDM of
the objections preferred by the DDA.
17. The counsel for the SDM, Patel Nagar with respect to the relief
claimed in W.P.(C) No.10554/2009 has stated that the petitioners have not
preferred any appeal against the mutation in the name of Sh. Rakesh
Mehta. It is stated that the order of mutation in favour of Sh. Rakesh
Mehta has attained finality.
18. The counsel for the petitioners however contends that the name of
Sh. Rakesh Mehta who was merely a tenant of the petitioners could not
have been mutated and the order of mutation is mala fide. He contends
that the representation of the petitioners against the said mutation has been
rejected and which led to filing of W.P.(C) No.10554/2009.
19. Needless to state that the senior counsel for Sh. Rakesh Mehta
W.P.(C)19506-08/2005 & W.P.(C)10554/2009 Page 8 of 12
controverts that Sh. Rakesh Mehta was a tenant under the petitioners.
20. The counsel for the petitioners has also contended that while Sh.
Rakesh Mehta in application for impleadment filed in W.P.(C)
No.805/2005 was claiming possession of only 100 sq. yrds., he is now
claiming possession of 700 sq. yrds.
21. The aforesaid factual disputes cannot be adjudicated in these
proceedings. The Delhi Land Revenue Act having provided for the
remedy of appeal against the order of mutation, the writ petition claiming
the same relief would not be maintainable particularly when disputed
questions of fact appear to be involved and which are best left to be
adjudicated under the mechanism provided under the Act. The contention
of the counsel for the petitioners that the petitioners are seeking an enquiry,
cannot be accepted. The Appeal and Revisional Authorities under the
Land Revenue Act are well equipped to take care of such grievance.
22. Insofar as the claim of the petitioners to being put into possession is
concerned, it has been enquired from the petitioners as to how such a
W.P.(C)19506-08/2005 & W.P.(C)10554/2009 Page 9 of 12
direction can be made even if the boundary disputes/objections to
demarcation are finally decided in favour of the petitioners, inasmuch as as
per the demarcation report the entire land is built up and occupied and the
persons who are in occupation are not before this Court. In this regard it
may be noticed that even possession of Sh. Rakesh Mehta which is now
not disputed, was not disclosed by the petitioners in W.P.(C) No.19506-
08/2005. The averments in the writ petition also, as aforesaid, show that
the petitioners were/are aware of the encroachments on the land; without
impleading the so called encroachers, a direction for delivery of possession
has been sought.
23. The counsel for the petitioners however today states that the land is
vacant and open even now. He, further under instructions of one of the
petitioners present in Court, states that the land is in possession of the
DMRC and is open, only with a boundary wall.
24. I have considered whether in these proceedings a direction for
possession can be given. The area where the land is stated to be situated is
in the heart of the city and is built up/constructed. There is nothing before
W.P.(C)19506-08/2005 & W.P.(C)10554/2009 Page 10 of 12
this Court to even gauge the location of the land in juxtaposition to the
surroundings. In these circumstances, it is not possible for this Court to
direct the delivery of possession of the land.
25. The writ petitions are therefore disposed of with the following
directions:-
(i) The SDM, Patel Nagar is directed to dispose of the objections
preferred by DDA to the demarcation report on or before 31st
December, 2011;
(ii) The petitioners as well as Sh. Rakesh Mehta and any other
concerned person shall be entitled to participate in the said
proceedings;
(iii) The party aggrieved from the decision of the SDM, Patel
Nagar shall have remedies in accordance with law;
(iv) The petitioners shall be entitled to challenge the mutation in
the name of Sh. Rakesh Mehta by taking proceedings in accordance
with law thereagainst. In computing the period of limitation for the
W.P.(C)19506-08/2005 & W.P.(C)10554/2009 Page 11 of 12
said proceedings, the period during which W.P.(C) No.10554/2009remained pending in this Court i.e. from 27 th July, 2009 till 31st
August, 2011 shall be excluded therefrom;
(v) If ultimately the demarcation proceedings find the land of the
petitioners to have been encroached upon, the petitioners shall be at
liberty to take proceedings in accordance with law for recovery of
possession thereof from the persons in possession thereof.
No order as to costs.
CM No.3071/2011 in W.P.(C) No. 10554/2009 (of respondent no.4 of
exemption)
Allowed, subject to just exceptions.
Copy of this order be given Dasti to the parties.
RAJIV SAHAI ENDLAW
(JUDGE)
August 16, 2011
bs
W.P.(C)19506-08/2005 & W.P.(C)10554/2009 Page 12 of 12