Shri Jafar Saddique And Ors., ... vs Delhi Development Authority And ...
2003 Latest Caselaw 612 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. The petitioners are occupants of portions of khasra No. 446/443 Jhilmil, Tahirpur, Delhi and have constructed chemist shop, medical store, barber shop, residence etc. Thus, the portions in possession of the petitioners are being used for different purposes.

2. The petitioners claim to be occupying the properties prior to 1980, though no proof of the same has been submitted along with the writ petition. The earliest proof of occupation is a notice issued under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereinafter referred to as 'the PP Act') from 1st April, 1981 onwards. The petitioners were assessed to damages and paid the damages from time to time.

3. In the writ petition, the petitioners have contended that no order of demolition or removal can be passed without complying with the requirements of Sections 4 and 5 of the PP Act. Since the petitioners were apprehending such an action by the respondents, the writ petitions were filed seeking directions against the respondent not to dispossess the petitioners from their respective properties.

4. Interim orders were initially granted in favor of the petitioners restraining the respondent from demolishing the properties in question. However, the demolition did take place on 7th October, 1996, the same day when the restraint order was passed. On an application being moved by the petitioners, the petitioners were permitted to raise the structures of the same size again on the same site at which they existed prior to their removal at their own risk and cost and it was observed that in case the court came to the conclusion later on that the said structures were demolished in accordance with law by the respondents, the petitioners would remove the same again. This order was passed on 16th October, 1996.

5. Counter-affidavit has been filed by the DDA in which it is stated that the petitioners are mere trespassers on government land which was duly acquired by award No. 61/72-73 after completion of acquisition proceedings. The possession of the land was taken over by the Land Acquisition Collector and the land vests free from all encumbrances as envisaged under Section 16 of the Land Acquisition Act (hereinafter referred to as 'the LA Act'). After completion of the acquisition proceedings and taking over possession, the land was placed at the disposal of the DDA vide Notification under Section 22(1) of the Delhi Development Act, 1957. The land is stated to have been transferred to the Dilshad Garden Housing Scheme of DDA on 16th January, 1983.

6. It is further stated in the counter-affidavit that in so far as the assessment of damages is concerned, the same does not create any right, title or interest in favor of any person to reclaim the possession of the portion demolished and the authorities reconsidered the matter in view of the acquisition of the land and directed demolition of the property. It is stated that the petitioners are not entitled to invoke the provisions of the Act and that the assessment of damages does not lead to a conclusion that they have any right in respect of the land. It is further stated that the damages in fact have been assessed illegally and should not have been assessed.

7. It is lastly stated in the counter-affidavit that the land has been acquired by following the due process of law by issuing a notice under Sections 9 and 10 of the LA Act.

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

9. There is no dispute about the fact that the petitioners are rank trespassers and have no right, title or interest on the land in question whatsoever. In fact, the petitioners themselves claim that they are in unauthorized occupation and in fact were paying damages under the PP Act. Learned counsel for the petitioners thus contends that even a rank trespasser can only be evicted from a property after due process of law and submits that since proceedings for assessment of damages were initiated under the PP Act, the petitioners can only be evicted in pursuance to orders passed under the said Act.

10. Learned counsel for the petitioner has relied upon various judgments. In Krishna Ram Mahale (Dead), by his Lrs v. Mrs. Shobha Venkat Rao, , it was held that an occupant in possession cannot be dispossessed without recourse to law. In the said case, the landlord had obtained possession of the premises and the business conducted therein surreptitiously dispossessing the licensee behind her back. The learned counsel referred to the judgment of the Supreme Court in Munshi Ram & Ors. v. Delhi Administration, AIR 1968 SC 702 wherein it was held that before a tenant can be evicted from his holding, his tenancy must be terminated and eviction should be done through a court of competent jurisdiction. It was further held that it is true that no one, including the true owner, has a right to dispossess a trespasser by force if the trespasser is in settled possession of the land unless he is evicted by due course of law. Learned counsel referred to the judgment of the Supreme Court in Puran Singh & Ors. v. The State of Punjab, which dealt with the right of a trespasser in private defense of property under the Indian Penal Code, 1860. He contends that even a trespassed in actual physical possession of the property has a right to defend the property. Learned counsel referred to the judgment of the learned Single Judge of this court in Amrik Singh Sabharwal v. Kanta Devi, 54 (1994) DLT 401. The contention of the petitioner therein was that the petitioner's possession could not have been disturbed without serving a notice on him as contemplated by Section 30 of the Delhi Development Act, 1957 and Section 343 of the Delhi Municipal Corporation Act, 1957. All that the court observed was that though there was no necessity to admit the petition which was dismissed, DDA would take care to observe the compliance of law before ejecting the petitioner or before demolition of any superstructure.

11. Learned counsel for respondent No. 1 DDA, on the other hand, contends that mere assessment of damages does not create a right in favor of a party and in this behalf referred to the judgment of this court in Aisha Jalal v. Lt. Governor & Ors., 2003 III AD (Delhi) 303 where it was observed in para 14 as under:

"14. The charging of damages only implies that for the time period a person is unauthorisedly occupying the government property and the mere payment of damages does not create any right in favor of the occupant as in the present case being the petitioner."

12. It is thus apparent from the aforesaid that there is no doubt about the proposition that if a person is a tenant, licensee or occupies the property in any legal capacity, if rights are terminated, proceedings must take place in accordance with law and it is not open to a party to forcibly dispossess such a person. This is so since the said party itself cannot be permitted to decide the status of the occupant and the occupant has a right to defend himself.

13. The question thus which arises for consideration is whether such a right would be available to a person who is a rank trespasser on a government land which land has been acquired under the LA Act. The LA Act is a code by itself providing for procedure for acquisition of the land. Parties are given right to file objections and be heard. In fact, under Section 9 of the said Act, notices are to be given to all persons interested in the land. It is only thereafter that an award is made and published under Sections 11 and 12 of the LA Act. Under Section 16 of the Act, the Collector after having made an award can take possession of the land which vests with the government, free from all encumbrances. This procedure was followed in the present case and the land was duly acquired. The award is of 1972-73.

14. The next step taken was to place the land at the disposal of the DDA by following the provision and notifying the land under Section 22(1) of the Delhi Development Act. This was also done on 13th December, 1977. The land has been transferred for Dilshad Garden Housing Scheme by the DDA on 16th January, 1983. The notices placed by the petitioner on record do show that the petitioner may have come into occupation of the land some time in 1981. Thus, the occupation is much after the acquisition proceedings were completed and the land vested with the DDA and is prior to the land being placed for utilization for Dilshad Garden Housing Scheme.

15. The payment of damages itself under the PP Act cannot create a right in favor of the petitioner as it only implies that the petitioner is in unauthorized occupation of the land for which he is being charged. It has been held so in the case of Aisha Jalal (supra).

16. The question is: whether the petitioners are entitled to the protection of the PP Act and the proceedings therein before they can be so evicted? In my considered view, the answer to this is in the negative.

17. The menace of occupation of public land acquired for planned development of Delhi by unauthorized encroachers has assumed alarming proportions. Lands are acquired for such development after following the due procedure under the LA Act. Compensation is paid for such land. Thereafter, these lands are occupied by persons without any right, title or interest and then they are sought to be evicted from the land. All kinds of benefits and rights are claimed. Even then, these lands are occupied without there being any right in favor of the occupants. The general principles of trespasser cannot apply to such persons who occupy public land which is duly acquired after meeting the provisions of the LA Act and are unauthorized occupants. It is necessary to take steps to clear the occupation by such persons. Unfortunately, these steps get delayed for reasons best known to the authorities and when these people continue to occupy such land, pleas, as are sought to be raised in the present petition, arise.

18. I am of the considered view that the petitioners having no right, title or interest in the land are not entitled to any protection and are liable to be evicted from the land in question. In fact, demolition action also took place and the structures of most of the petitioners were demolished. However, they were permitted to be reconstructed in terms of the orders passed by this court subject to the petitioners removing the structures themselves from the property in question in case it was found that the demolition had taken place in accordance with law. Since I find no case in favor of the petitioner and in view of the directions passed on 16th October, 1996 permitting the petitioners to reconstruct, I consider it appropriate to direct the petitioners to remove themselves from the structure and the land in question within a maximum period of 15 days from today.

19. The writ petitions are dismissed leaving the parties to bear their own costs.