* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 8th December, 2011
+ W.P.(C) 8573/2011 and CM 19391/2011
IN THE MATTER OF
ANIL TYAGI ..... Petitioner
Through: Mr. N.P. Singh, Advocate
versus
DELHI DEVELOPMENT AUTHORITY ..... Respondent
Through: Mr. Ajay Verma, Advocate with
Mr. Mukesh Kumar, Advocate
CORAM
HON'BLE MS.JUSTICE HIMA KOHLI
HIMA KOHLI, J. (ORAL)
1. The present petition is filed by the petitioner praying inter alia for quashing of the order dated 21.11.2011 passed by the respondent/DDA in respect of the property bearing No.S-530, School Block-II, Shakarpur, Delhi, calling upon the petitioner to remove his belongings from the subject premises within 15 days from the date of passing of the order.
2. Learned counsel for the petitioner states that the impugned order is arbitrary and illegal inasmuch as it has not taken into consideration the circular issued in the year 1977 by the Government of India, Ministry of Works and Housing. It is the case of the petitioner that as per the aforesaid circular, even though the land of the petitioner was acquired W.P.(C) 8573/2011 Page 1 of 6 vide Award No.7/1969, in view of the fact that the colony itself was directed to be regularized, it was decided that the construction carried out in the said colony upto the year 1977 would also be regularized by the respondent/DDA as per a Resolution passed by the Ministry of Works and Housing, Govt. of India. In support of the said submission, counsel for the petitioner seeks to rely on Annexure P-7, which is stated to be a copy of a précis of the resolution passed by UOI, approving the modified layout plan from Shakarpur Complex. It is further stated by counsel that as the petitioner is in possession of the subject property ever since the year 1986, when he had purchased the same, and has remained in uninterrupted possession thereof till date, he is entitled to continue remaining in possession of the subject land.
3. It is pertinent to note that this is the third round of litigation in respect of the subject premises. The first round of litigation was initiated by the petitioner and his brother Shri Sanjeev Tyagi by filing a writ petition, registered as W.P.(C) 13426-27/2005, which was disposed of vide order dated 16.02.2010. In the said writ petition, the grievance of the petitioner was that the respondent/MCD was proposing to take demolition/sealing action in respect of the subject premises. Notice was issued on the said petition on 05.10.2005. However, in the order passed on 16.02.2010, the statement of the counsel appearing on behalf of respondent/DDA was recorded that the land in question had been W.P.(C) 8573/2011 Page 2 of 6 acquired by the DDA by virtue of an Award passed in respect thereof, which fact was, however, disputed by the petitioner. The said writ petition was finally disposed of with directions issued to the petitioners to approach the respondent/DDA alongwith necessary documents to satisfy the respondent/DDA with regard to their right and status over the land. Further directions were issued to the respondent/DDA to dispose of the representation of the petitioners within a period of six weeks. The said representation of the petitioners was considered by the respondent/DDA and an order dated 08.04.2011 was passed by the Assistant Director (ML), DDA (Annexure P-13), wherein it was observed that the land in question was acquired, possessed and placed at the disposal of the respondent/DDA vide Award No.07/1969. As a result, the petitioners were called upon to remove the unauthorized construction from the DDA land, failing which, it was directed that the encroachment would be removed at the risk and cost of the petitioners.
5. Aggrieved by the aforesaid order and the demolition action sought to be taken by the respondent/DDA on the passing of the said order, the petitioner and his brother filed a second writ petition, registered as W.P.(C) 3944/2011, wherein it was their contention that though they had been granted a personal hearing, they would be satisfied if yet another personal hearing was granted to them and they would be permitted to place on record all the relevant documents before the W.P.(C) 8573/2011 Page 3 of 6 respondent/DDA for it to pass a reasoned order. The said request of the petitioners was acceded to vide order dated 1.6.2011 and the respondent/DDA was directed to grant yet another personal hearing to the petitioners and pass speaking order thereafter. It was further directed that in case an adverse order would be passed, the petitioners would be given reasonable time of at least two weeks to vacate their premises. The parties were directed to maintain status quo with regard to the title and possession of the land and it was further directed that no third party right would be created in the subject premises. Lastly, it was ordered that in case an adverse order would be passed, the occupants would remove their belongings within a period of two weeks from the date of passing of such an order. In the interregnum, the petitioners were called upon to file an undertaking in terms of the aforesaid order, which it is stated by the learned counsel for the petitioners, was duly filed.
6. Pursuant to passing of the aforesaid order, the petitioner filed yet another representation before the respondent/DDA, which has been decided by the impugned order dated 21.11.2011, wherein it was observed by the respondent/DDA that though the School Block, Shakarpur Complex was regularized vide Resolution No.107B, however, the said resolution clearly mentioned that any construction included in the regularization plan, which had come up on land owned by DDA, MCD and Govt. of India, could not be considered as a part of the approved plan and would be deleted. It was further observed that the subject premises was W.P.(C) 8573/2011 Page 4 of 6 a part of facilities and as such not a part of the approved layout plan available in the record of the respondent/DDA and that the same was duly shown to all the concerned parties in the course of the hearing. It was reiterated that the land in question was validly acquired under Award No.7/1969 which was never challenged by the petitioner at any stage. It was further observed that the documents of purchase of the subject premises produced by the petitioner were of the year 1986, which was much after the acquisition of the land and the notification issued under Section 22(1) of the DDA Act dated 16.02.1972. With the aforesaid observations, the representations of the petitioner and his brother were rejected and they were called upon to vacate the subject land within 15 days. It is also pertinent to note that as per a communication dated 01.09.2011 by the Naib Tehsildar, the subject premises is a part of land, duly acquired by DDA, which is required for an approved project of Delhi Government for the construction of a Dispensary.
7. This Court has examined the order dated 21.11.2011. A perusal thereof shows that there is no illegality, arbitrariness or perversity therein which requires interference by this Court in judicial review. It is neither disputed that the land in question was acquired vide Award No.7/1969, nor is it the case of the petitioner that the said Award was challenged by him or his brother. The grievance raised by the petitioner that the subject land if acquired can only be treated as Nazul land by the respondent/DDA and that it cannot be used for any other purpose, cannot W.P.(C) 8573/2011 Page 5 of 6 be a subject matter of consideration in the present proceeding as the question to be considered here is whether the possession of the petitioner in the subject land is legal and valid. For the aforesaid reasons and having regard to the undertaking given by the petitioner and his brother, as recorded in the order dated 01.06.2011 passed in W.P.(C) 3944/2011 that in the event of an adverse order being passed, both of them would vacate the subject land within two weeks, while directing the petitioner to make compliances in terms of the aforesaid undertaking, the present petition is dismissed in limine as being devoid of merits alongwith the pending application.
(HIMA KOHLI)
DECEMBER 8, 2011 JUDGE
rkb
W.P.(C) 8573/2011 Page 6 of 6