Abdul Aziz vs D.D.A.
2009 Latest Caselaw 455 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                               W.P.(C) 360/1997

                                            Date of decision : 09.02.2009
IN THE MATTER OF :
#ABDUL AZIZ                                       ...   Petitioner
!                                     Through :Mr. Vikram Nandrajog, Adv.

                    versus

$ D.D.A.                                   ..... Respondent
^                                     Through : Ms. Sujata Kashyap, Adv.


CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may be allowed to see the
        Judgment?                    No

     2. To be referred to the Reporter or not?                       No

     3. Whether the judgment should be reported in the Digest? No

HIMA KOHLI, J. (ORAL)

The present writ petition was filed by the petitioner in the year

1997, praying inter alia for issuance of a mandamus to the respondent, to

allot an alternate industrial plot to the petitioner, in lieu of existing premises

No.519-A, Dilshad Garden, Delhi under the scheme of Relocation of

Industries. The petitioner had also sought directions to the respondent to

allot 400 sq. yds. of land in Khasra No.446/443, Revenue Estate Jhilmil,

Tahirpur, Delhi after de-notifying the same from the acquisition proceedings.

2. It is the case of the petitioner that he is the owner and in

possession of plot measuring 4,250 sq. yards, bearing No.519-A/1, Dilshad

Garden, Delhi and that he has been paying municipal tax, electricity and

water bills in respect of the aforesaid premises. Counsel for the petitioner

submits that the petitioner is running a business of manufacturing paint

brushes at the aforesaid plot. On 18.3.1980, the respondent/DDA issued a

letter to the petitioner informing him that in case the petitioner was

interested in shifting his industry from the aforesaid location to an

alternative location in some other industrial area, he may file an application.

It was however clarified in the said letter that the invitation to file an

application would not be treated as a commitment for allotment.

3. On receipt of the aforesaid letter, the petitioner filed an

application with the respondent/DDA on 26.3.1980. Thereafter, the

petitioner did not hear from the respondent despite repeated

representations. It is contended on behalf of the petitioner that in the

meantime, four persons claiming to be officers of the respondent came to his

premises on 17.1.1997 and threatened him with dispossession, thus

compelling him to file the present writ petition.

4. Notice was issued in the present writ petition on 29.1.1997 and

on the very same day, on an interim application filed by the petitioner, status

quo order was directed to be maintained regarding possession of the

premises in question. The aforesaid status quo order was confirmed on

12.11.1997 when the writ petition was admitted to regular hearing.

Thereafter, in the year 2004, the petitioner filed an application seeking to

amend the writ petition on the basis of certain averments made by the

respondent in its counter affidavit filed in the year 2003. The said

application was allowed and the amended writ petition was taken on the

record. In the amended writ petition, the petitioner sought additional reliefs

as prayed for in prayers (iii) to (v), which included a direction to the

respondent/DDA to allot 400 sq. yards of land in the same Khasra, after de-

notifying the same from acquisition proceedings.

5. Counsel for the respondent states that the land involved in the

present writ petition is part of Khasra No.446/443, situated in the Revenue

Estate Jhilmil, Tahirpur, Delhi, measuring 4 bighas 17 biswas (equivalent to

4850 sq. yrds.). She submits that the entire land of the above Khasra was

acquired by the Land & Building Department, vide Award No.61/1972-73 and

placed at the disposal of the DDA, vide notification dated 13.12.1977. On

17.11.1994, a parcel of land measuring 12 biswas (equivalent to 600 sq.

yards), out of the aforesaid land measuring 4 bighas 17 biswas, was de-

notified. The land that was de-notified comprises of one Masjid and one

factory which, the petitioner claims is still under his occupation. Insofar as

the parcel of land measuring 4 bighas 5 biswas, apart from the aforesaid 12

biswas is concerned, the same is stated to have been de-notified from the

purview of acquisition, and physical possession thereof was taken over by

the Land Acquisition Collector under Section 16 of the Land Acquisition Act

and the same is stated to be in their possession even today.

6. It is stated on behalf of the respondent that some persons

including the petitioner herein trespassed on the above land and were

removed therefrom in the year 1977, and that the petitioner was allotted

alternate residential plots bearing No.15/235 and 15/236 at Trilokpuri, Delhi.

Counsel for the respondent further submits that in the year 1977, a general

clearance drive that was undertaken by the respondent to remove

unauthorized encroachment on Government land, and in the said drive, the

petitioner as well as his son were removed from Government land. In the

year 1995, the respondent undertook another general clearance drive and

found that the petitioner had re-encroached on the Government land and

had in turn given the premises on rent to different persons. The respondent

carried out the demolition programme on 23.8.1995 and reclaimed an area

measuring about 3,500 sq. yrds after removal of commercial structures

therefrom. The said reclaimed area was duly fenced to protect the land from

encroachment. Thus, it is stated that the petitioner is no longer in

occupation of any part of the land measuring 4 bighas 5 biswas, in Khasra

No.446/443.

7. With regard to the claim of the petitioner for entitlement to an

alternate industrial plot, it is stated on behalf of the respondent that though

a scheme was floated to allot industrial plots to units running in Dilshad

Garden, Shahdra Zone, the said scheme was not finalized due to some

technical reasons and the same was closed down in the year 1989.

8. Counsel for the respondent contends that even otherwise, the

petitioner is not entitled to make a claim for any alternate allotment of plot

because the respondent has already acceded to the request of the petitioner

for de-notification of land measuring 12 biswas out of 4 bighas 17 biswas,

acquired earlier, from the purview of acquisition, which includes the factory

being run by the petitioner therefrom.

9. It is further stated that the petitioner has approached this Court

with unclean hands as he has failed to inform the Court that there were

certain other litigations that were initiated by 3 persons, namely, Mr. Jaffar

Siddique, Mr. Vakil Ahmed and Mr. Liaqat Ali, by filing three independent writ

petitions in this Court against the DDA, registered as WP(C)No.3843, 4340

and 4341/1996, wherein the aforesaid persons claimed to have come into

possession of some land, part of the same plot i.e. Khasra No.446/443,

Revenue Estate Jhilmil, Tahirpur, Delhi.

10. A perusal of the common judgment dated 29.5.2003 passed in

the three writ petitions preferred by the aforesaid three persons shows that

the learned Single Judge took into consideration the stand of the petitioners

therein that they were occupying the properties prior to the year 1980 and in

the absence of compliance of the requirement of the provisions of Sections 4

& 5 of the Public Premises Act, no order of demolition/removal could be

passed, and held that the petitioners were not entitled to any protection

under the Public Premises Act and the proceedings therein and were liable to

be evicted as they had no right, title or interest in the land. It was observed

that the general principles of trespasser cannot apply to such persons who

occupy public land which is acquired after fulfilling the requirements of the

Land Acquisition Act. With these observations, the writ petitions were

dismissed.

11. Aggrieved by the aforesaid judgment, the petitioners therein

preferred three appeals, registered as LPA Nos.447, 443 and 448/2003,

which were dismissed by the Division Bench, vide order dated 17.9.2003. In

the said appeal, reference was made to the rejoinder filed by the aforesaid

appellants in their writ petitions to the effect that despite the land acquisition

proceedings having taken place and after compensation being paid,

possession had never been taken by the DDA and rather, the DDA in

collusion with Shri Abdul Aziz, the petitioner in the present case, was

permitted to encroach upon more and more lands. The Division Bench,

however, turned down the aforesaid plea and held that the authorities were

competent to exercise the powers conferred on them for taking possession

of the land in question, if necessary with the assistance of the police, but the

appellants being unauthorized occupants, could not be held to be entitled to

occupy the land.

12. It is also pertinent to note that the decision of the Division Bench

dated 17.9.2003 was taken in appeal before the Supreme Court, but was

dismissed, vide order dated 13.10.2003. It is also relevant to note that the

land in question is the same which is the subject matter of the present writ

petition which was acquired through the Award No.61/1972-73 and was

placed at the disposal of the DDA. The aforesaid facts are taken note of only

to emphasize the fact that claims have been made by various parties, and

now the petitioner herein, in respect of the same land, which were turned

down by the learned Single Judge and upheld by the Division Bench and the

Supreme Court in the cases referred to herein above. Hence, the judgment

dated 29.5.2003 passed by the learned Single Judge has attained finality.

13. The prayer of the petitioner for claiming de-notification of 400

sq.yds. of land out of the land already acquired and vested in DDA as early

as in the year 1977, is mis-conceived and cannot be entertained. The plea of

the petitioner for an alternate allotment of an industrial plot of land is also

devoid of merits, particularly, since at the request of the petitioner to

denotify a part of the land measuring 12 biswas out of the parcel of land

measuring 4 bighas 17 biswas, was not only accepted by the authorities, but

the said land was de-notified and remains in the possession of the petitioner.

14. Counsel for the respondent contends that a part of the aforesaid

land measuring 6 biswas out of 12 bighas 4 biswas is urgently required for

the purpose of road widening. She submits that the said parcel of land which

had been de-notified from acquisition, has been renotified under Land

Acquisition Act, vide notification dated 13.9.2007 and a declaration has also

been issued on 22.4.2008, under Section 6 of the Land Acquisition Act. This

aspect of the matter is not a subject matter of consideration before this

Court as the scope of the writ petition is confined to examining the claim of

the petitioner for allotment of an alternate industrial plot and for de-

notification of 400 sq. yrds. of land from out of the acquired land measuring

4 bighas 5 biswas out of Khasra No.446/443.

15. In view of the aforesaid facts and circumstances, the relief

sought by the petitioner in the present writ petition is declined. The writ

petition is dismissed.

16. The parties are left to bear their own costs.

HIMA KOHLI,J FEBRUARY 09, 2009 sk