T.N. Vohra And Ors. vs Govt. Of Nct Of Delhi And Ors.
2003 Latest Caselaw 887 Del

JUDGMENT

Anjay Kishan Kaul, J.

1.The petitioners have filed the present writ petition seeking a restraint order against the respondents from taking any action in respect of the property of the petitioners situated in khasra Nos. 424 - 425 (popularly known as Group-4 Building), situated in the area of Village Mahipalpur, Tehsil Mehrauli.

2. The notifications for acquisition of land were issued under the provisions of the Land Acquisition Act, 1894 ( hereinafter to be referred to as `the L.A. Act' ), but the same were dismissed. Learned senior counsel appearing for the petitioners on instructions had stated on 22.07.2003 that the petitioners are not disputing the fact that the land in question stands acquired and the acquisition stands upheld.

3. The plea of the petitioners is based on the ground that Mahipalpur Extension is being considered for regularization on the ground of built up area prior to 31.01.1993 and is enlisted in the list of unauthorized colonies so slated for regularization is stated that a list of 1071 unauthorized colonies was sent to the Union of India by the Government of National Capital Territory of Delhi in which the name of the petitioners' colony exists.

4. A reference has been made to civil writ petition being CWP No. 4771/1993 titled `Common Cause v. Union of India and Ors.' in which the decision of the respondents to regularize the colonies was challenged. The Division Bench was of the view that a pick and choose policy should not be followed in respect of the residents of the colony. However, by an Order dated 03.11.1997, the Division Bench restrained all concerned parties from carrying out any construction activities in unauthorized colonies.

5. The petitioners have alleged that the officers of the respondent DDA are coming frequently to the land in question and lastly visited the same on 11.02.2002 and are applying pick and choose policy.

6. Learned senior counsel for the petitioners, thus, contends that protection be extended to the petitioners as for similarly situated other persons in respect of 1071 colonies slated for regularization. A number of such writ petitions have been disposed of by giving liberty to the respondents authorities to proceed against the land acquired, but in a uniform manner. The occupants have been restrained from carrying out any construction in violation of norms, from occupying open area, from putting the pr mises to commercial use, etc. Thus, the learned senior counsel contends that a similar order be passed in the present writ petition.

7. The respondent No. 2 DDA in their counter affidavit have stated that the building in question forms a part of khasra No. 425, which stands acquired by issuance of notifications under Sections 4 and 6 of the L.A. Act. The award was made being award No. 33/86-87 in the year 1986 for planned development of Delhi. These acquisition proceedings were challenged in CWPs No. 1340/1983, 1386/1983 and 3005/1985, which were subsequently dismissed. After dismissal of these writ petitions, the respondent DDA by etter dated 18.04.2002 had requested the Land Acquisition Collector to hand over possession of the land due to vacation of stay after dismissal of the writ petitions.

8. It has been pointed out that the petitioners had filed 4 sale deeds in respect of their title in the khasra No. 424 - 425. These sale deeds have been executed in September and November, 1994. The sale deeds contained a statement to the effect that the property is free from notification and acquisition and it is stated that the said statement is false. It is, thus, further stated that the petitioners could not have purchased the land and the same is void ab initio being in contravention of the provi ions of Delhi Land (Restriction on Transfer) Act, 1971.

9. In the counter affidavit, the respondent DDA stated that the construction, if any, carried out is illegal and without obtaining any sanction or permission from any authority. The time for taking over possession is stated to have been fixed on various ates between May, 2002 to February, 2003, but the same could not materialise because of non-availability of police force, public resistance or interference from various authorities. Thus, only 38 bighas out of total 88 bighas of land has been handed ove to respondent DDA. A part of the land has been handed over to CISF for their transit camp and the remaining land is also under process for being handed over to para-military forces as they need the same for setting up their transit camp. A reference also been made to a letter dated 31.1.2003 for a request to construct a fire station to cater to the needs of the area. The counter-affidavit goes on to state that a programme was fixed on 10.2.2003 for taking over possession of land and that the Group

-4 misguided the respondent authorities by handing over a dim copy of the order dated 26.9.2002 passed in CM 984/2002 in Civil Writ Petition 5780/2002. A copy of the stay order has been annexed. The copy of the order shows that the person handing over he said order has tampered and interpolated with the same by interpolating khasra No. 425 instead of 424 (min) mentioned in the said order. It is thus alleged that the petitioners have in fact tampered with the order to produce that as an obstruction to possession being taking over which calls for the petition to be dismissed at threshold and petitioners be punished for the contemptuous act.

10. The counter-affidavit of Government of India refers to the framing of the policy and states that the guidelines prepared in that behalf were filed in CWP 4771/1993 Common Cause and Ors. and is being monitored by the Division Bench of this court.

11. In the rejoinder to the affidavit filed by the DDA, the petitioners have denied knowledge about the pendency of writ petition challenging the acquisition proceedings and it is stated that in terms of policy guidelines, colonies where 50% of the area already built up are being considered for regularization and Mahipalpur Extn. falls in this category.

12. The petitioner has also filed an additional affidavit to explain the controversy regarding the submission of the stay order. The petitioner in the said affidavit for the first time stated that the land in question is fully built up and has been given on rent to Group-4 Securities, multi-national company which is being used as an office. The said company is stated to be engaged in the business of providing security guards. It is alleged that not only the petitioner's building but even other buildings in the vicinity are being used for commercial purposes. The petitioners claim that they are not Group-4 which is a tenant and thus they have never participated in the production of the order dated dated 26.9.2002 or the tampering thereof.

13. The said additional affidavit also states that in so far as the plea raised by respondent DDA about the fire station is concerned, the request for possession is of vacant land in possession of Gaon Sewa Samiti which is not concerned with the land of the petitioner. It is further stated that the land is not required for CRPF transit camp as the same is about 2 k.m. away from the land of the petitioners.

14. Learned counsel for the respondents have relied upon the judgment of this court in Ashok Nagar Welfare Association (Regd.) v. Union of India and Ors., 1999 V AD (Delhi) 84. It was held in the said case that though there may be some decision to regularize some of the unauthorized colonies, it is not open to the petitioners to approach the court under writ jurisdiction and the plea can be raised before the appropriate authority. A reference has been made to the decision of the Division Bench of this court in M/s Prem Chand Ramesh Chand v. DDA and Anr., 66 (1997) DLT 482 as also in the case of Civil Writ 3110/1991, Attar Singh v. DDA decided on 10.8.1992. In Attar Singh's case, the contention that there is a policy decision not to acquire built up area in view of the proposed policy for regularization was repelled. This judgment was relied upon in M/s Prem Chand Ramesh Chand case (supra) which also noticed the Full Bench judgment of this court in Roshanara Begum v. Union of India and Ors.,

15. A reference has also been made to the Division Bench judgment of this court in Dharam Pal and Anr. v. Union of India and Ors., 2002 II AD (Delhi) 533 in support of the contention that the collection of house tax by the MCD from a party which is in unautho ised possession, does not give any special rights to the said party where the land has been acquired.

16. The records of Civil Writ 1340/1983 Suraj Mal and Ors. v. Union of India have also been sent to the court. In the said writ petition, the challenge was to the acquisition proceedings in respect of the Village Mahilpur and including the land in question On 6.9.1983, status quo regarding possession, construction and occupation till disposal of writ petition was directed. The writ petition was finally disposed of on 20.3.1997 in view of the Full Bench judgment of the court in Roshanara Begum's case (supra) which was approved by the Supreme Court in Murari and Ors. v. Union of India and Ors., . The annexure to the writ petition showing the different khasra number owned by the parties include the khasra number in question mentioned at Sl.N .20 on p.36 of the Writ Petition.

17. It is also pointed out that Dharam Pal and Anr. case (supra) also dealt with the same colony of Village Mahilpur and Award No.30/86-87 while in the present case, the award is No.33/86-87. The copy of the award in the present case has also been produced to show that in respect of the khasra numbers, the claim was made only for land, Bandh entries and not of any other construction.

18. The aforesaid facts, according to the respondents, substantiated the plea that the petitioners have constructed the property in violation of the orders passed in Civil Writ 1340/1983 as also the directions passed in Common Cause case (supra).

19. I have considered the submissions advanced by learned counsel for the parties.

20. As stated by learned senior counsel for the petitioner above, there is no doubt on the issue of the acquisition of the land. The plea of the petitioner is based merely on the fact that the colony in question is slated for regularization and thus protection should be provided to the petitioners and they should not be discriminated against in view of the orders passed in Common Cause case (supra) which has been followed in various cases by this court.

21. It is, however, to be noticed that in terms of the orders in Common Cause case (supra), a specific direction was passed on 3.11.1997 restraining any party from carrying out any construction activity in the unauthorized colonies.

22. A reading of the order sheet of civil writ 1340/1983 shows that status quo was directed as to possession, construction and occupation vide order dated 6.9.1983 which continued till 20.3.1997 when the writ petition was dismissed. Similar is the position in CWP No.1386/1983 and 3005/1985. Thus, during this period of time, there could have been no question of any construction being carried out or parting with possession.

23. The documents filed by the petitioners show that it is during the pendency of the writ petitions that the sale deeds have been executed in favor of the petitioners. It is not understood how such a sale deed could have been executed or registered showing a wrong declaration that the property is free from any acquisition proceedings. Thus, possession was parted with in pursuance to the sale deeds and transfers were made contrary to the interim orders passed in Civil Writ No.1340/1983, CWP 1386/1983 a CWP 3005/1985. The said act is thus clearly contemptuous.

24. The aforesaid facts also show that there could have been no question of any construction on the property in question in view of the orders passed in the aforesaid Civil Writ Petitions as also the orders passed in Common Cause case (supra). Thus, neither the construction could have been carried out between 1983 to 1997 or after 1997. The construction made at site is thus clearly in violation of the orders.

25.It is also relevant to note that the policy of regularization is also based on the request of residential user of the owners. This is not so in the present case. The property has been put to commercial use and in fact has been let out. This fact was not even disclosed in the writ petition till such time as the additional affidavit was filed by the petitioner arising on account of the allegations made against the petitioners by respondent DDA about the production of a tampered order of the court. The petitioner thus did not even approach this court with clean hands.

26. It is also to be noticed that similar pleas have been rejected in the aforesaid cases where land is sought to be protected on the ground that the same is slated for regularization. This is abundantly clear from the judgments in Ashok Nagar Welfare Association case (supra) and Prem Chand Ramesh Chand case (supra). As noticed above, the area in question is the same as in Dharam Pal and Anr. case (supra) where also the benefit was not extended to the owners whose land had been acquired.

27. The conduct of the petitioners itself disentitles them to any relief in the writ petition. The petitioners purchased the property when acquisition proceedings had been initiated and challenge to the same was pending before the court on the issue of delayed acquisitions. The sale deeds were executed contrary to law. The petitioners constructed on the property without obtaining any sanction and carried on commercial activities after renting out the same. This was also not permissible. Not only this, the construction and handing over of possession was made contrary to the interim orders granted in civil writs 1340/1983, 1386/1983 and 3005/1985 as also in the case of Common Cause case (supra). The conduct of the original owners as well as the petitioners has been contemptuous.

28. The matter also does not rest at this as when the respondents went to take possession of the site, the said activity was obstructed on the ground of an interim order dated 26.9.2002 passed by this court. The order produced was tampered and the khasra No.425 interpolated in the same instead of khasra No.424 (min). The report annexed to the counter-affidavit shows the same to have been handed over by Group-4 as tenants. In the writ petition there was no such disclosure and it was stated in para 2 tha petitioners are owners of built up property popularly known as Group-4 Building.

29. In view of the aforesaid, I am of the considered view that the present petition is an abuse of the process of the court, the petitioners have not come with clean hands before this court and attempts have been made on the part of the petitioners to prevent the respondents from taking over the possession of the land in question in accordance with law by even producing interpolated orders. As to who is responsible for the same, will have to be found out though the petitioners certainly benefited from th same.

30. I am thus of the considered view that the writ petition is without any merit from substance and is liable to be dismissed.

31. Further directions are also required to be passed in the writ petition in view of the fact that sale deeds have been executed in favor of the petitioners on the statements made in the sale deed that there are no acquisition proceedings pending. It is not understood how the sale deeds could have been executed contrary to law without obtaining the requisite NOC from the concerned Tehsildar (Notification) or the concerned authority. A direction is thus made to respondent No.1 to enquire into the matter and submit a status report to this court in respect of the sale deeds annexed to the writ petition. The needful be done within a maximum period of eight weeks from today.

32. The most serious aspect of this case is that production of a fabricated and tampered order to prevent action by the respondent authorities to take possession of the land in question. The report annexed to the counter-affidavit shows that the same was done by Group-4. However, a more detailed enquiry is necessary to fix responsibility as it is a clear case of interference and obstruction with the process of justice. Before proceeding further in this matter, I consider it appropriate to direct that the Registrar (Vigilance) of this court shall enquire into the matter to find out as to who was responsible for production of the tampered order dated 26.9.2002 before the concerned authorities. In this behalf, the Registrar can summon the petitioners and the concerned persons from Group-4. The respondent authorities will also cooperate with the Registrar. It is open to the Registrar to take the assistance of concerned police authorities. A report be submitted within a period of eight weeks from today.

33. The writ petition is accordingly dismissed with costs of Rs.50,000/- to be deposited with the Delhi Legal Services Authority within four weeks.

34. The matter be listed for further directions in respect of the reports directed to be furnished by the respondent No.1 and the Registrar (Vigilance) on 31.10.2003