Kartar Singh vs D.D.A. & Anr.
1999 Latest Caselaw 1174 Del

ORDER

Usha Mehra, J.

1. The writ petition filed by the petitioner was disposed of by the Division Bench of this Court and while disposing the same on 4th October, 1997, the Division Bench gave following direction, namely :-

(i) Within four weeks from today the respondent DDA shall make an application afresh to Tehsildar, Delhi for demarcation of survey, No. 936/7 Min. Village Mandawali Fazalpur, Delhi, out of which 6 Biswas land is claimed by the petitioner as Bhumidar in possession.

(ii) The petitioner shall be treated as a party to the demarca- tion proceedings. The petitioner shall be noticed and demarcation shall be made by the Tehsildar in the presence of both the par- ties. The demarcation proceedings shall be concluded by the Tehsildar within six months from the date of appearance of both the parties, before him.

(iii) If the land on which the petitioner proposes to raise a building and as to which the building has been filed with the respondent-DDA falls within Khasra No. 936/7 Min. above said then the respondent-DDA shall not with hold the building plan of the petitioner merely on the ground of title and possession of the petitioner being disputed by the DDA.

2. As per first direction the Delhi Development Authority (in short the DDA) was to get the demarcation done afresh through the Tehsildar. When this direction was not complied with, the petitioner filed contempt proceedings agaisnt the DDA. However, subsequent thereto on 26th December, 1996 the demarcation by the Tehsildar was done in the presence of the officials of the DDA as well as of the private parties. From the said demarca- tion it was proved that the petitioner's property was situated in village Mandawali Fazalpur, Delhi. This was so confirmed by spot inspection and demarcation carried out by the Tehsiladar. After the said demarcation deed 26th December, 1996 when the building plan of the petitioner was not sanc- tioned by the DDA, the petitioner issued a legal notice to the DDA to sanction the plan. No reply of the same was received. Since his plan was not rejected within the prescribed period hence the petitioner commenced the construction on the presumption that his building plan deemed to have been approved. The building plan was submitted by him in 1992 and as it had not been rejected, therefore, he started construction. The petitioner presumed that in view of the demarcation carried out by the Tehsildar, pursuance to the order of this Court, his plan could not have been rejected, as the Tehsildar's report and the spot inspection were in his favour. Hence, he filed the application bearing No. 4685/97 seeking direction to the DDA to accord formal sanction of his building plan and in the meantime wanted restraining order against the DDA from obstructing the construction which he was doing.

3. Delhi Development Authority in the meantime vide application bearing No. 5561/97 raised objections to the demarcation carried out by the Tehsil- dar on 26th December, 1996. The main challenge to the said demarcation was that "Sihaddah" should have been taken as the starting point instead of north eastern corner. That the Tehsildar favoured the petitioner by ignor- ing to take the fixed point. He ought to have taken Karkari Mor as the fixed point which he in fact ignored. Tehsildar had not taken three distinct and fixed points for demarcation and finally the demarcation carried out by the Tehsildar showed that the disputed land fall in Khasra No. 445 in village karkardooma.

4. For the above reasons, DDA submitted that fresh demarcation be ordered to be carried out by the SDM of the area.

5. This Court after considering the above objections came to the conclu- sion that prima facie the demarcation carried out by the Tehsildar was not in accordance with the directions given by this Court. The concerned Tehsildar was selected to produce the proceedings of the demarcation pertaining to Khasra No. 936/7 Min. alongwith plan. Pursuance to this Court's order, one Mr. Anil Sharma, Patwari appeared and produced the file pertaining to demarcation dated 26th December, 1996. However, after going through the record this Court vide order dated 17th February, 1998 deemed it proper that the demarcation be carried out afresh under the supervision of the SDM of the area. Thus the prayer of the DDA made in C.M. No. 5561/97 was ac- cepted. Directions were accordingly issued to the SDM of the area to have the demarcation done afresh through Tehsildar, Halka Patwari/Kanungo, other than the one who carried out earlier demarcation.

6. That as per the directions of this Court, the SDM of the area carried out the demarcation through the Illaka Patwari and the Tehsildar other than the one who did it earlier. SDM of the area has submitted his report.

7. It is this report of the SDM which is under challenge by the DDA. We are now concerned with the objections filed by the DDA against the report of the SDM of the area.

8. Before we proceed with the objections of the DDA to the report of the SDM, let's have quick glance to the facts as set up by the parties.

9. Petitioner in the writ petition had alleged that he had purchased the plot of land measuring 300 sq. yds. (6 biswas) forming part of Khasra No. 936/7 Min. from one Moolchand, a recorded owner/Bhumindar as per record of Khatauni of the year 1986-87 situated at Vikas Marg Institutional Area, in the revenue estate of Village Mandawali/Fazalpur, Delhi. The land was purchased vide registered sale deed dated 28th October, 1991. No Objection Certificates from the Land and Building Department of the Delhi Administra- tion was obtained. This land measuring 6 biswas was shown in the Aks-Sharj- ra of the Village Mandawali Fazalpur, Delhi. The plot has boundary wall and was shown in the Khasra/Girdawari of the year 1991-92. This 6 Biswas land forming part of Khasra No. 936/7 Village Mandawali Fazalpur, Delhi accord- ing to the petitioner, had not been acquired. It was duly urbanised. Since this area falls within the development area of the DDA hence petitioner submitted his building plan for sanction to the DDA on 6th November, 1992. He got the electricity connection from DESU in his name. DDA in order to sanction the plan asked for certain documents and made certain queries. These were furnished and queries answered. However, vide letter dated 21st January, 1993 DDA refused to accord sanction.

10. Aggrieved by the rejection of his building plan, the petitioner approached this Court as pointed out above. DDA took the stand that the land for which the petitioner submitted the building plan falls in Khasra No. 445 in Village Karkardooma which land stood acquired by the Government and placed at the disposal of the DDA. That even the land of Khasra No. 936/7 Min. of Village Mandawali Fazalpur was acquired vide Award No. 2179 and possession was taken over on 3rd December, 1968. That the person from whom the petitioner alleged to have purchased the land was none else than his brother Moolchand. The said Moolchand according to DDA had unauthorisedly raised the boundary wall. The petitioner was trying to encroach upon the government land. the application filed by Moolchand for injunction was dismissed on 28th April, 1992.

11. It is in this background that DDA was to get fresh demarcation done in order to ascertain whether the land purchased by the petitioner i.e. 6 Biswas falls in Khasra No. 936/7 Min. of Village Mandawali Fazalpur, Delhi. The SDM of the area after carrying out the demarcation submitted his report indicating that the land of the petitioner falls in Khasra No. 936/7 Min. Village Mandawali Fazalpur, Delhi which is according to site plan of Suit No. 200/89 decided on 14th November, 1995 and according to Ex. PW-1/1 dated 20th February, 1995.

12. DDA has filed Objections to the report of the SDM dated 21st April, 1998. The objections can be summarized as under: (1) The Patwari did not have all the material required for demarcation. Field book was not brought at the time of demarcation. Proper prescribed instruments for demarcation was also not availabe. Therefore, the demarcation done by the SDM was contrary to the rules prescribed under the Punjab Land Revenue Manual; Secondly, (ii) all the three fixed points which are necessary for proper demarcation had not been identified. Hence, demarcation carried out by the SDM is arbitrary, illegal and against the rules.

13. Before taking up the objections of the DDA, we have to keep in mind that Illaka Patwari, Tehsildar, SDM are the concerned revenue officials who are supposed to be conversant with the rules of demarcation. Demarcation of the land is one of their job as Revenue Officers. Secondly, official work is presumed to be correct unless faulted. At the outset it must be mentioned that the DDA had tried to find fault with the report of the SDM on the ground that DDA's officials were not associated or that its officials wanted to object to the measurements but were ignored. These objections of the DDA are against the record. As already pointed out above official act is pre- sumed to be correct unless by cogent evidence disproved. There is nothing on record either placed or proved by the DDA to establish that DDA official objected to the mode or method of measurement or regarding fixed points. On the contrary report of the SDM speaks volumes of the conduct of the offi- cials of the DDA. They were present at the spot. They participated in the measurements and accepted/admitted the fixed points to be correct yet refused to sign and mark their presence. This is what the report of the SDM says and there is nothing on record to disbelieve the version of the SDM.

14. Now turning to the first objection that due to non-availability of the Field Book in the report and measurement instruments, demarcation, could not be carried out. If done it is bad. This objection is without force because the report of the SDM is very explicit and clear on this point. The details given negates this objection. In its report the SDM has clearly mentioned that prior to starting the measurement in the presence of all the persons present, the revenue records were inspected with the Halqa Patwari. In addition to revenue record, consolidation map (Masavi) and supplementary copies of Titamma Plans of the Award were also inspected. The report also show that Halqa Patwari and the Field Kanungo of the Village Mandawali and Karkardooma had brought with them revenue record and measurement instru- ments. It was only after inspection of the revenue record that these people reached the place wherefrom the measurement was to start. The SDM very fairly and without concealing any material fact in his report has mentioned about the non-availability of the Field Book. Despite the non-availability of the Field Book the SDM carried out the measurement by brass measuring tape and Gathas. In the absence of the Field Book the procedure adopted by the Halqa Patwari under the supervision of the SDM for demarcation cannot be faulted nor could be said to be contrary to the instructions laid down by the Punjab Land Revenue Act (hereinafter called the Act). The Act confers powers on the Revenue Officers to define boundaries. For that purpose under Section 101 of the Act instructions have been laid as to how the delimitation or demarcation has to be carried out. As per the said instruc- tions, the Kanungo while submitting his report would explain in detail how he made his measurements. It further says that if a boundary is in dispute, the Field Kanungo should relay it from the village map prepared at the last settlement. There is nothing in these instructions wherefrom it could be inferred that due to non-availability of the Field Book, the measurement carried out by the Halqa Patwari would be bad or not proper. This objec- tion, therefore, has no force. Rather perusal of the report indicates that on account of non-availability of the Field Book, the revenue officers took precautions and carried out the measurement with the tapes. Where it was found necessary the marks were put on the spot. The site plan of Khasra No. 936/7 Min. of Village Mandawali Fazalpur has also been attached alongwith spot site plan to indicate as to of which Khasra and Village the demarca- tion was done. Therefore, it cannot be said that in the absence of Field Book demarcation done by SDM is defective or bad. It is not the case of the DDA that in the absence of Field Book demarcation is not possible or banned. Rather the Halqa Patwari adopted the course of measurement which is permissible and practical. We see no reason to reject the report on this ground.

15. Turning to the objection with regard to three fixed points, we also find no substance in this objection. For rejecting this objection we are relying on the fact that Kanuago N.L. (DDA) Shri Mange Ram, Patwari N.L. (DDA) Shri Mehender Singh, Kanungo, L.M. (DDA) Shri Rajvir Singh and Kanun- go, L.M. (DDA) Shri Om Pal Sharma were present when measurements were recorded and demarcation done at the spot. As per the report of the SDM, the officials of the DDA admitted the fixed points. The first fixed point was the "Pakka" wall constructed by Railway Department from South to North which is in Khasra Nos. 40, 48, 47, 64 which passes through Khasra Numbers and reached Village Karkardooma. In the Eastern side of Khasra No. 1452/953/40 Min. there is land of Railway Department. This land has been acquired. According to the Award of Khasra No. 1452/953/40 Min. there is wall of Railways which is on Southern side of Khasra No. 47 upto 'DOL'. From there it is 90 degree towards West in Khasra No. 1452/953/40 Min. and Northern 'DOL' and Khasra No. 47 Souther 'DOL' and Khasra No. 1452/953/40 Min. Northern and Eastern corner. This was taken to be the fixed point "A" which was accepted to be correct by all the persons present. Contention of Mr. Jayant Bhushan, counsel for the DDA that this point was far away from the disputed land and the village boundary being meandering line and not a straight line, it was not impossible for the SDM to accurately measure by following the curves and turns along the boundary. Hence the demarcation was defective. Secondly, beyond point 'C', measurements were taken. This objection is belied from the facts on record. Parties accepted point "A" to be the correct at the spot. Moreover, while taking measurements the revenue officers took in view the consolidation map (Masavi) and of all places and curves in order to avoid any discrepancy in taking measurements because of the meandering line, if any. In fact the SDM at the time of measurements kept in view all places and curves below as well as upper. Hence, on this count it cannot be said that measurements were not recorded accurately. Objection of the DDA that the measurement from Point 'C' was made till part of the way and beyond that no measurement was made at all appears to be contrary to the record. In fact the report shows that after point 'C' the measurement was carried out keeping in view the Masavi (consolidation map) and in view that towards Western side of Khasra Nos. 48/2, 46, 43, 42 and 8 is the Northern 'DOL' which on the Village boundary side by side 9+20+50+30+60+12+8+48 = 237 Gathas was measured and actual point was put which is in Khasra No. 936/7 Min. and it is Eastern-Northern corner of the same. Therefore, it cannot be said that beyond point 'C' no measurements were recorded. Objection on these counts is to sustainable in view of the detailed report furnished by SDM duly supported by the site plan prepared at the spot. Moreover, it will not be correct on the part of the DDA now to say that its officials lodged a protest which was ignored. On the contrary all the officials including the SDM of the area have in no uncertain words recorded that the points "A" and "C" and other measurements as recorded were accepted by all including the officials of the DDA though they refused to sign the report. Similarly, so far as fixed point No. 2 is concerned the SDM took the fixed point as "Sihaddah". To the earlier report of Tehsildar, objection of the respondent-DDA was that it ought to have been measured from "Sihaddah". This time SDM of the area got it measured by keeping "Sihaddah" as the fixed point. He has explained how he reached the mark stone i.e., "Sihaddah". Simply describing the procedure to reach the mark stone does not mean that the fixed point "Sihaddah" was not taken into consideration or that there was no such fixed point marked at the site. The SDM took the mark stone to be the fixed point. We see no reason to doubt the same or presume that, that was not the correct fixed point.

16. So far as the 3rd fixed point is concerned the revenue staff as point- ed out above is the competent person to identify the Rasta. Rather he DDA staff admitted the spot as correct as per their own map. Therefore, it would not lie for the DDA now to contend that three fixed points were not taken by he Patwari and/or by the SDM at the time of carrying out demarca- tion.

17. For the reasons stated above, we find no substance in the objections of the DDA particularly in view of the detailed report submitted by the SDM. There is no reason to discard the same. Objections being without substance stand rejected. Directions are accordingly given to the respondent-DDA to sanction the building plan of the petitioner as per the direc- tions of this Court dated 4th October, 1996, within a period of four weeks from today.