Shyam Sunder Maheshwari And Ors. vs Union Of India (Uoi) And Ors.
2003 Latest Caselaw 162 Del

JUDGMENT

Devinder Gupta, ACJ

1. The petitioners have in this writ petition sought quashing of notices Annexure P12 (Colly.) dated 18.10.1999 issued by Assistant Engineer-111, P.W.D., Division-XIV, Delhi informing the petitioners that they had unauthorisedly occupied land of Ring Road, Phase-III belonging to Public Works Department. After the aforementioned notices were received by the petitioners, they on 27.10.1999 sent similar reply Annexure P13 (Colly.) pointing out that 150 ft. wide land has been acquired for construction of Ring Road so far under the provisions of the Land Acquisition Act from Raja Garden Chowk towards Maya Puri Chowk. The petitioners by making reference to various acquisition proceedings, which had taken place, asserted that they were not in unauthorised possession of any part of the Government land. The total acquired land for Ring Road width was only 150 ft. The land in their occupation was beyond the acquired width and unless further 60 ft. width was acquired under the provisions of the Land Acquisition Act, the same cannot be treated as Government land. Under apprehension that the Public Works Department Authorities were considering land in their occupation to be part of the road, when the petitioners were threatened of being dispossessed have the writ petition seeking the following directions:

"(i) Certiorari to quash and set aside notices and actions of the respondents particularly notices dated 18.10.1999 (Annexure P12 Colly.) in respect of petitioners land and commercial establishment/shops built thereon fully described in the "Schedule of Land and Properties" annexed with the writ petition situated in Sharda Puri Colony facing Ring Road being part of Khasra No. 1435/2, Village Bassai Darapur, Tehsil Patel Nagar, Distt. West, New Delhi belonging to the petitioners being illegal, mala-fide and unconstitutional.

(ii) Mandamus directing the respondents not to act contrary to law and to restrain them from disturbing peaceful possession and enjoyment of petitioners of their immovable properties i.e. plots of land, commercial establishment/shops presently in possession and occupation of the petitioners.

(iii) Call for 1 for the entire records from the offices of the concerned respondents and after examination of the records to quashand set aside the action of the respondents qua petitioners land and properties.

(iv) Any other order, direction, writ declaration as this Hon'ble Court may in the circumstances of the case consider fit and proper be also granted."

The petitioners imp leaded, in addition to Union of India and Delhi Administration, the Officials of Public Works Department as respondent Nos. 4 to 6. Reply was filed by the respondents on the affidavit of Shri T. Tiwari, Executive Engineer, P.W.D. controverting the stand taken by the petitioners stating that the land in occupation of the petitioners formed part of the land, which had been acquired for road.

2. The nature of the case set up by the petitioners and the stand taken by the respondents, require, one consideration i.e. the identity of property that whether it forms part of the acquired width of the road or is beyond the acquired width of the road. Demarcation was stated to have been carried out during pendency of this petition on 27.2.2001, as per the orders of A.D.M. (West), which was relied upon by the respondents. When the petition came for consideration on 24.7.2002, it was noticed that there was dispute as regards the manner in which demarcation had been carried out that it was not in consonance with the procedure applicable.

3. At this stage, it may be mentioned that dispute is with respect of land comprised in Khasra No. 1435 of Revenue Estate Basi Darapur, Delhi. Noticing different stand of the parties as also the fact that in earlier acquisitions land had been acquired and a part of the land had been left out to be acquired, over which the petitioners were claiming title, an elaborate order was passed on 24.7.2002 directing demarcation to be carried out by a nominee of the Divisional Commissioner, Government of National Capital Territory of Delhi. In presence of learned Counsel for the parties, order was passed directing Divisional Commissioner to nominate a person, well versed in carrying out demarcations, to identify the land, which was in occupation of the petitioners, with specific directions that the Local Commissioner will locate on the spot land comprised in Khasra No. 1435 and while carrying out demarcation the Local Commissioner will also record statement of the affected parties including their objections, if any, and will submit his report to the Court accompanied with plan and copy of Musavi.

4. Pursuant to the said order Shri Jagir Singh, Sub-Divisional Magistrate, Sub-Division Delhi Cantt., submitted his report to this Court on 4.10.2002. Along with the report the Local Commissioner also forwarded number of documents including proceedings recorded on the spot, site plan prepared at the spot, the copy of Aks Shajra of Khasra No. 1435, Field Book of Khasra No. 1435, copy of original Musavi, attested copy of Musavi with Jambandi and other proceedings including record of proceedings.

5. On receipt of the report, opportunity was allowed to the parties to file objections, if any. Objections have been filed to the report by Public Works Department on the affidavit of Shri S.K. Jain, Executive Engineer. Reply to the objections has been filed by the petitioners.

6. We heard learned Counsel for the parties at length. It is not disputed that Local Commissioner visited the site in question on 24.8.2002 and on 27.8.2002. According to the Public Works Department demarcation was not conducted on 24.8.2002 since the concerned revenue officials did not bring the relevant revenue record with them. According to Public Works Department Officials, measurements were carried out on 27.8.2002. Their precise objections are:

"Khasra No. 1435 on the spot with the help of permanent points as depicted in Musavi was not located. Respondents were not associated while carrying out the ground demarcation, if any. Admittedly help of brass scale has been taken for demarcation in the absence of Tatima's and Field Book (of acquired land) and it is also stated that Aksh Sizra is rough. Khasra No. 1435, situated in Bassidarapur has not been located and the area, which stands vested in the Government as per various mutations/awards has not been identified.

The total area of land acquired under various mutations/awards in the Report does not tally with the total acquired area of land as per the mutations/awards available with PWD. The total unacquired land as per Jamabandi of 1960-61 and Mutation No. 92 is 0-18 biswas, whereas unacquired area according to record comes to 0-17 biswas. Annexure-I attached to this affidavit describes the detailed discussions in this regard.

The remaining land which has to be located on the Khasra has not been actually located but has been calculated and estimated by the Local Commissioner.

No note of two properties covering an area of 300 sq. yards forming part of Khasra No. 1435-A adjoining to petitioner's properties has been taken by the Local Commissioner. Details are given in Annexure-I to this affidavit.

No statements of the affected parties or their objections have either been called for or recorded by the Local Commissioner.

The sketch drawn on 27.8.2002 to depict position of marble stacks, shops of the petitioners and 150 ft. Ring Road which was signed by PWD officials in token of its having been drawn in their presence is manipulated by superimposing certain things on it. The purpose; meaning and important of this document has been changed. Manner and method of demarcation is described in preliminary objection. In Annexure-II various super-imposition done subsequent to signing of the sketch are highlighted.

As per the bye-laws there is a provision for 12 ft. vacant land around the boundary wall of school. The piece of land under possession of the petitioners exists on the prohibited under the bye-laws."

7. Needless to add that as per the Court's direction Local Commissioner was supposed to carry out demarcation in accordance with the guidelines which have been in vogue and are in consonance with the instructions issued by the Financial Commissioner, Punjab and are incorporated in Chapter 1M of Volume I of the High Court Rules and Orders, as applicable to Delhi. As per the settled guidelines and even as per the directions of this Court, the Local Commissioner was supposed to record objections, if any, raised by any of the affected parties on the spot, while carrying out demarcation so as to avoid any grievance in that behalf later on. The officials of the respondents were present on the spot. As a token of that they have also signed the proceedings recorded on the spot on 27.8.2002. The report of Local Commissioner specifically states that two permanent points available on the spot were located with the help of revenue record. The same were found to be correct by each individual present on the spot. The extent of the area in occupation of each of the petitioners, being covered area was also measured and correctness of the measurements were duly authenticated by the petitioners as well as by the officials of the respondents including the person who has filed affidavit in support of the objections. In these two documents no objection was raised or pointed out by the officials of the respondents to the Local Commissioner. The objections, which are now sought to be raised, as such, are after-thought.

8. In any case, we have duly considered the objections. Local Commissioner has reported that out of Khasra No. 1435, as per Mutation No. 92 dated 14.2.1916, 1 bigha 7 biswas was acquired; according to Award No. 692 and Supp, and its Naksha-mutzmin 1 bigha 3 biswas was acquired; under Award No. 1113 area 0-9 biswa was acquired; and in Award No. 1305 area 1 bigha 06 biswas was acquired. In this way land 4 bighas 5 biswas was acquired out of Khasra No. 1435, which was also found to be correct as per the spot position, in which puce Ring Road was found to have been constructed. This position was also not disputed by the parties. In order dated 24.7.2002 also this admitted position was recorded. Thus as per revenue records 0-17 biswas is the unacquired area, out of Khasra No. 1435. However, there is some slight discrepancy in the revenue records. The total area of Khasra No. 1435, as. per Jamabandi for 1960-61 works out to 5 bighas 3 biswas, therefore, the unacquired area works out to 18 biswas and not 17 biswas.

9. Whether the unacquired area is 17 biswas or is 18 biswas, is not of much relevance since according to the demarcation report towards Eastern side of the Ring Road is the unacquired area of 16 biswas. The remaining area is towards Western side. As per the demarcation report, the petitioners were found to be in possession of only 16 biswas, which exactly is the unacquired portion of land falling on the Eastern side of the Ring Road. There was no objection raised or pointed out at the time of carrying out of demarcation, since no such objection is recorded in the two documents signed on the spot by those who were present. The representatives of respondents were also present on spot. They have admittedly signed the two statements, accepting the correctness of the measurements carried out on the spot as also the manner in which the same were conducted. We also find that the demarcation has been carried out strictly in consonance with the guidelines laid down in this behalf as incorporated in Volume I, Chapter I-M under the heading "Procedure in Hadd Shikri Cases", copy of which is Annexure P33 at page 391. Thus the demarcation having been duly carried by a nominee of Divisional Commissioner, there is no reason for us to discard the same. Accepting the said report and rejecting the objections of the respondents, which are nothing but after-thought, the petition deserves to be allowed. The petitioners have been found to be in occupation of land, which is outside the acquired portion and which has been identified on the spot. In case respondents are interested in extending the width of the Ring Road, it is for them to initiate appropriate proceedings to acquire the land in accordance with law. Till then their possession cannot be disturbed otherwise than in due course of law.

10. Consequently, the writ petition is allowed. The impugned notices are quashed and set aside. The respondents are restrained from interfering with the ownership and title of the petitioners on their respective land except in due course of law. Parties are left to bear their expenses.