Mr. Harbans Lal Gambhir And Ors. vs Delhi Development Authority ...
2005 Latest Caselaw 1244 Del

JUDGMENT

Pradeep Nandrajog, J.

1. The above captioned petitions are a squel to the order dated 10.7.2002 passed by this Court in W.P.(C) 4576/1999.

2. Vikas Vihar Vijay Vihar Awas Hitkari, a representative body of the residents of Vijay Vihar had filed the said writ petition praying that encroachment on Government land comprised in khasra No. 87/14, Village Rithala be removed. On 10.7.2002, mandamus was issued to DDA and MCD to decide as to in whom land vested and thereafter to remove the encroachments.

3. DDA proceeded to act in compliance with the order dated 10.7.2002 for the reason the land comprised in Khasra No. 87/14 was vested in DDA by virtue of a notification issued under Section 22 of the Delhi Development Act, being notification No. F9(4)89L and B.

4. During the encroachment removal action taken by DDA, it transpired that encroachments existed on land comprised in Khasra No. 87/7/1 as well. Land comprised in said Khasra has been placed at the disposal of DDA vide notification No. F9(13)78L and B.

5. For record, land comprised in Khasra No. 87/14, as per revenue record, belonged to the Gaon Sabha Rithala. Upon urbanisation of the said village vide notification No. TCO/82/47 dated 23.4.1982, by virtue of Section 150(3)(a) of the DLR Act, 1954, said land vested in the Union of India. As noted above, it was subsequently placed at the disposal of DDA. As regards land comprised in Khasra No. 87/7/1, it was acquired vide Award No. 16/85-86. Thereafter, it was placed at the disposal of DDA vide notification dated 25.9.1985.

6. Writ petitioner in WP(C) 1710-11/2005 allege that they are occupying land falling in Khasra No. 87/17, Village Rithala. They state that the land is unacquired. They state that DDA has no jurisdiction over the land and have prayed that DDA be restrained from demolishing the structures effected by them on land comprised in Khasra No. 87/17.

7. As per these writ petitioners, an unauthorised colony called Vijay Vihar/Hargobind Vihar has come up on agricultural lands of Village Rithala. They state that the said colony has been recommended for regularisation in terms of the guidelines issued by the Government of India. They state that the Residents Welfare Association has submitted the necessary documents required by the Government of India to enable regularisation of the colony.

8. Writ petitioners in the other captioned petitions claim that they are in possession of land comprised in Khasra No. 87/7/1. They state that they are in occupation of plots carved out on the land comprised in Khasra No. 87/7/1. They state that DDA is obliged to remove the encroachments on the land comprised in Khasra No. 87/14 in compliance with the order dated 10.7.2002 passed in WP(C) 4576/99, and therefore DDA cannot remove the petitioners from the land they are occupying. Additionally, these writ petitioners also state that the colony has been recommended for regularisation.

9. Opposing the writ petitions, it is averred in the counter affidavit filed by DDA (refer counter affidavit filed in WP(C) 2313/2005) that the land claimed by the writ petitioners falls in Khasra No. 87/14. It is stated by DDA that the said land comprised in Khasra No. 87/14 stands vested in the DDA and accordingly DDA has a right to remove the encroachments. Additionally, it is urged that DDA is obliged to carry out the mandate of the order dated 10.7.2002 passed in WP(C) 4576/1999.

10. Learned counsel for the petitioners urged that when WP(C) 4576/1991 was filed, a site plan was filed showing the boundaries of land comprised in Khasra No. 87/14. Said site plan was not disputed by DDA. Accordingly, counsels submitted that DDA would be bound by the description of the land comprised in Khasra No. 87/14 as reflected in the site plan filed along with WP(C) 4576/1999.

11. From the afore-noted facts, the undisputed position which emerges is that neither party disputes that land comprised in Khasra No. 87/14 vests in the DDA and in compliance with the mandate of the order dated 10.7.2002 passed by this Court in WP(C) 4576/99, DDA is obliged to remove all encroachments from the said land. Dispute, however, is to the demarcation of Khasra No. 87/14 and 87/7/1 at site.

12. Pleadings in WP(C) 4576/1999 show that the parties were not at variance with each other on the issue of location of the land at site falling in Khasra No. 87/14. Petitioner of the said writ petition sought removal of the encroachments on the land comprised in Khasra No. 87/14. DDA as well as MCD washed their hands of, each stating that the land did not vest in them. This Court directed DDA as well as MCD to sort out the issue and thereafter remove the encroachments. Therefore, petitioners cannot raw any mileage from the fact that the site plan filed by the writ petitioner of WP(C) 4576/1999 was not disputed by either MCD or DDA. Be that as it may, if there is a dispute pertaining to the boundaries of a particular Khasra, dispute has to be resoled as per law.

13. Section 28 of the Delhi Land Revenue Act, 1954 reads as under :-

"28. Settlement of boundary disputes -

((1) All disputes regarding boundaries shall be decided by the Deputy Commissioner, as far as possible, on the basis of existing survey maps, but if this is not possible the boundaries shall be fixed on the basis of actual possession.

(2) It in the course of an inquiry into a dispute under this section, the Deputy Commissioner is unable to satisfy himself as to which party is in possession or if it is shown that possession has been obtained by wrongful dispossession of the lawful occupants of the property within a period of three months previous to the commencement of the inquiry, the Deputy Commissioner-

(a) in the first case, shall ascertain by summary inquiry who is the person best entitled to the property, and shall put such person in possession; and

(b) in the second case, shall put the person so dispossessed in possession and shall then fix the boundary accordingly."

14. Rules 403 to 412 of the Delhi Land Revenue (Rules) 1962 prescribe the procedure for demarcation and resolution of boundary dispute under Section 28 of the Delhi Land Revenue Act, 1954.

15. Learned counsel for DDA urged that on 1.2.2005, demarcation was carried out to identify the boundaries of Khasra No. 87/14. Though, the demarcation report has not been filed by any party to the writ petitions, photocopy was shown to the Court during arguments.

16. Photocopy shows that the demarcation has been carried out by DDA without the participation of the writ petitioners. The demarcation report does not indicate that the petitioners were intimated about the proposed demarcation.

17. Since valuable rights of the petitioners are affected as a result of demarcation of land comprised in Khasra No. 87/14, in my opinion, any demarcation without prior intimation to the petitioners would be in derogation of their rights for the reason petitioners have a right to object to the manner in which demarcation is carried out, if the same is not carried out in terms of the notified guidelines pertaining to demarcation. For example, during demarcation, a party may object to the survey instrument used; a party may object to the permanent site identified from where demarcation is initiated; a party may object that the field book is not being followed while carrying out demarcation.

18. Writ petitions are accordingly liable to be disposed of with a direction to the DDA to seek fresh demarcation. Prior intimation should be given to the petitioners when demarcation is effected. Further action would follow the report of demarcation.

19. Writ petitions are accordingly disposed of with a direction to DDA to apply under Section 28 of the Delhi Land Revenue Act, 1954 for demarcation of the land comprised in Khasra No. 87/14, Village Rithala. Demarcation would also be carried out of land comprised in Khasra No. 87/7/1. The revenue authorities are directed to effect demarcation after notice to the writ petitioners. Demarcation would be carried out within a period of two months from today. Thereafter, mandate of the order dated 10.7.2002in WP(C) 4576/1999 be carried out by DDA keeping in view the report of demarcation. Additionally, DDA would be entitled to remove encroachments on land comprised in Khasra No. 87/7/1, Village Rithala for the reason the petitioners do not deny that the said and has been acquired.

20. I need not therefore decide on the issue of regularization of the colony.

21. No costs.