Manoj Kumar vs Delhi Development Authority, ...
2007 Latest Caselaw 1404 Del

JUDGMENT

J.M. Malik, J.

1. The appellant, Manoj Kumar, is stated to be the owner in possession of the property bearing No. HR-139, Pul Pehladpur, Delhi, measuring 100 square yards. This is an indisputable fact that the above-said property falls under unauthorised colony. However, the Government has assured the residents of unauthorised colonies that there is no intention of acquiring the built up areas as per DO No. F.9(10)/86-LandA/LA/6482 dated 19th August, 1986. The Government of India, Ministry of Works and Housing vide their letter dated 3rd July, 1982, appointed a Committee known as "Sri Niwasan Committee" to give its report on regularisation of the said unauthorised colonies. Besides this, certain directions were also given by a Division Bench of this Court in Civil Writ Petition No. 4771/1993. However, on 12th July, 2001 and 19th July, 2001, the officials of DDA and MCD visited the spot for taking forcible possession of the suit property. Consequently, the present suit for permanent injunction was filed with the prayer that the respondents be restrained from demolishing and sealing the property in question.

2. The defendant/DDA enumerated the following defenses in its written statement. The property in question falls in Khasra No. 232 measuring 4 bighas and 16 biswas, which was acquired vide award No. 63/82-83 dated 31st January, 1983, pursuant to notification dated 23rd January, 1965. The symbolic physical possession of the land under award was taken over on 4th March, 1983 and the land in question was placed at the disposal of DDA. The suit land vests in Central Government and the appellant/plaintiff has no right, title or interest in the suit property. The aspect of regularisation has nothing to do with the acquisition proceedings and the appellant cannot seek protection of the court on the ground that the colony in question is going to be regularised.

3. Before the trial court a photocopy of judgment in CWP 2212/1989 titled as Kul Prakash Awana v. DDA decided by Justice (Retd.) C.K. Mahajan was produced. It transpired that the plaintiff/appellant had filed the above-said writ in the name of one Kul Prakash Awana and the said writ was dismissed on 22nd October, 1999. In the said writ the particulars of house No. HR-139, Pul Pehlad Pur, New Delhi measuring 100 square yards comprising in Khasra No. 322 were mentioned. The learned trial court also quoted the relevant portion of the said judgment, which is reproduced as under:

The petitioner also had not filed any document of title. He is also not the recorded owner of the land in question. The main thrust of the petition is that the unauthorised colony Pul Pehlad Pur is one of the colonies listed for regularization. The government may have taken a decision to regularize but as far as this land is concerned it is validly acquired. The petitioner is an encroacher and is not entitled to equitable relief.

The learned trial court found that all these facts were suppressed. In view of the above-said award/acquisition the appellant had no right, title or interest in the property in question. The trial court also relied upon a judgment of the Apex Court reported in State of Bihar v. Drinder Kumar and Ors. .

4. I have heard the learned Counsel for the parties. Counsel for the respondents/DDA did not pick up a conflict with the argument raised by the learned Counsel for the appellant that the case of regularisation of 1071 unauthorised colonies is pending before the Government of India for regularisation. In case some colonies were regularised by the Government after some time and the appellant's house is permitted to be demolished, it would cause grave injustice to the appellant. It must be borne in mind that the appellant has got a built up accommodation. There is no inkling in the pleadings or prima facie evidence that Kul Prakash Awana and the appellant is the same person. Counsel for the respondent argued that it appears to be a case of same building. The pick and choose policy should not be adopted. The respondents must wait to see whether the government regularises the colony in question or not. Till then, no action should be taken against the appellant.

5. This view finds support from the recent case of this Court in Village Pul Pehladpur Residents Welfare Association and Ors. v. Union of India and Ors. , wherein it was held,

7. It is the common case of the parties that the lands in question already stand acquired under the Land Acquisition Act. In doing so, the State has indubitably incurred the liability to pay compensation. However, Guidelines also bring such lands within the sweep of the Regularisation Scheme but quite obviously only in respect of construction already existing thereon. The intention behind this Scheme is clearly for the amelioration of the plight of citizens who have carried out construction over several years, either under benign or benevolent indifference of the Authorities, or in connivance with them. Dispossession of persons from their homesteads and /or demolition of such homes, even if they are unauthorised constructions, is a very difficult and heart-rending decision to take, and thereafter to implement. The Policy, however, can scarcely be construed as conferring any benefit or right on the unauthorised trespassers to make a financial killings as a consequence of their illegal acts. Since these lands stand acquired, there can be no controversy that its occupation by the petitioners is illegal. While specifying that the benefits of regularisation would be available only in respect of those colonies where at least 50 per cent plots are occupied, the Authorities intended to put a halt on further development of colonies which were obviously in an inchoate stage and were in the process of being completely established. In other words, those colonies where more than 50 per cent of plots were unoccupied on the date of aerial survey would not be eligible for regularisation. This does not mean that if 50 per cent plots had been occupied, an imprimatur had been granted to the citizens at large to go ahead and construct homesteads on the unoccupied or undeveloped remainder. The only possible interpretation of these Guidelines is that even if 49 per cent of the plots had been occupied and built upon, those would not be liable for regularisation and accordingly would be liable for demolition. Unless this interpretation is given to the Guidelines, they would not be legally sustainable, as they would tend to invite and thereafter condone continuing illegal activities.

6. Similar view was taken in an authority reported in Mool Chand Gaur v. DDA and Ors. 103(2003)DLT 724, wherein it was observed:

8. Learned Counsel for the respondent has also referred to the judgment of the learned Single Judge of this Court in Ashok Nagar Welfare Association v. Union of India and Ors. 81(1999) DLT 82. In this case the writ petition was filed for regularisation of the colony. It was observed that the acquisition proceedings had already been upheld by the Court in a separate writ petition and that the policy of leaving out from the acquisition built up area has also been repelled in another Division Bench decision of this Court in Shri Bhagwan and Anr. v. Union of India and Ors. 1991(2) Delhi Lawyers 59, and affirmed by the Full Bench of this Court in Roshanara Begum v. Union of India , against which the appeal was dismissed by the Supreme Court. The writ petition was dismissed though it was stated that the same would not debar the petitioner from raising the plea of regularisation of the colony before the Appropriate Authority or authorities as constituted for the said purpose.

7. In view of the discussion above, I set aside the impugned order dated 17th January, 2002. The parties are directed to maintain status quo in respect of the property in question till the pendency of this case. Nothing in this order shall tantamount to be expression on the merits of this case.

8. FAO No. 35/2002 and CM No. 84/2002 are allowed and disposed of. Parties are directed to appear before the trial court on 17th September, 2007.

A copy of this order and lower court record be sent back to the lower court forthwith.