Delhi High Court

Inder Puri Welfare Association vs Uoi & Ors on 13 May, 2009

Author: Ajit Prakash Shah

*            IN THE HIGH COURT OF DELHI AT NEW DELHI



+               W.P.(C) 3057/1997 & CM Nos. 10150/2007 & 6318/2009



        INDER PURI WELFARE ASSOCIATION                 ..... Petitioner
                        Through:  Mr. Ratneshwar Das, Advocate.

                      versus


        UOI & ORS                                                 ..... Respondents
                               Through:     Ms. Sangeeta Chandra, Advocate for
                                            Respondent DDA.
                                            Ms. Maninder Acharya, Advocate for
                                            Respondent MCD.
                                            Mr. Chetan Sharma, Senior Advocate
                                            with Mr. Sushil K. Pandey, Advocate
                                            for Respondent No. 2.

CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE NEERAJ KISHAN KAUL

                               ORDER

% 13.05.2009

1. This petition purports to have been filed in public interest. It

prays for a direction to the respondent Delhi Development Authority

(in short „DDA‟) to remove the illegal encroachments allegedly made

by respondent No. 2, who happens to be a retired SDM of Delhi

Government, over an area which according to the petitioner measures

2 acres of land. The petitioner‟s case appears to be that the land in

question belongs to the respondent DDA and has been illegally

occupied by the said respondent. It is further the case of the

petitioner that the respondent has raised unauthorized construction.

The DDA in its affidavit, inter alia, stated that respondent No. 2 and

his nephew had encroached upon an area measuring more than 1600

square yards in Khasra No. 428 of Southern Ridge Revenue Estate.

2. On behalf of respondent No. 2, an affidavit was filed denying

any encroachment. As per the respondent No. 2, he has been in

occupation of the land for a long time. It was also the case of the

respondent No. 2 that he is entitled to retain the possession for the

beneficial enjoyment of the said land as he is entitled to conferment

of lease hold rights in terms of a policy circular dated 18th July, 1983.

He also relied on an order passed by the learned Single Judge of this

Court in Writ Petition (Civil) Nos. 4828-29/2005 disposed of on 21st

February, 2006, observing that DDA was under a direction from this

Court to implement the policy mentioned above and to confer

perpetual lease hold rights to the residents of village Todapur. As per

the respondent No. 2, so long as the said process does not culminate

in an order of conferment of lease hold rights to all those persons

who are occupying Government/DDA land in village Todapur, no

proceedings for eviction on the ground of unauthorized occupation of

any such land can be initiated by the respondents. The learned

counsel for the DDA submitted before this Court on 7th April, 2008,

that since the process of verification of the lands was spreading over

more than 5 villages, the same had not been completed and the

process of verification of the claims of persons, such as respondent

No. 2 for conferment of perpetual lease hold rights was in progress.

3. In view of the same, it may be relevant to reproduce here the

order dated 21st February, 2006 passed by the learned Single Judge

of this Court in Writ Petition (Civil) Nos. 4828-29 of 2005, which read

as follows:-

"21.02.2006:

Present:

Mr. Deepak Sabharwal for the Petitioner. Mr. Rao Vijay Pal for respondent No. 1. Ms. Shobhna Takiar for DA

+WP(C) No. 4828-29/2005 & CMs 3480/2005 & 4505/2005

1. Learned counsel for the Petitioner states that Petitioners seek limited relief being that those persons who are found eligible under the policy of the respondent i.e. are found admissible for purposes of grant of leasehold rights, qua them lease deeds should be executed.

2. Learned counsel for the respondent states that the respondent does not oppose this limited prayer.

3. For record I may note that on 18.07.1983, Government of India took a policy decision to grant perpetual leasehold rights to residents of Village Nagli Razapur, Arakpur Bagh Mochi, Dasghara, Todapur and Jhilmil Tahirpur.

4. Grievance in the petition is that whereas benefit has been accorded to other villages, residents of Village Todapur and being discriminated against.

5. Petition stands disposed of directing the respondents to comply with the office order dated 18.07.1983.

6. It is made clear that such individuals who are found ineligible for grant of leasehold rights would be entitled to take action in accordance with law should they feel that the denial is unjustified.

7. Needless to state that the persons who are found eligible would not be disturbed from their

existing sites till lease deeds are executed.

8. No costs."

4. Accordingly, on 7th April, 2008, this Court passed the following

order:-

"5. The controversy in the present writ petition, as noticed earlier, is whether the land in the occupation of respondent No. 2 is unauthorizedly encroached upon by him and whether the constructions raised upon the said land are unauthorized. Insofar as the encroachment part is concerned, the respondent's version appears to be that he is entitled to retain possession on the basis of the policy decision dated 18th July, 1983 which permits an occupant to seek perpetual lease rights on payment of the requisite amount. A single bench of this Court has, as already noticed earlier, directed the DDA to examine the entitlement of the grant of perpetual lease rights in favour of the respondents in occupation of Government/DDA lands in the villages referred to in the Government order dated 18th July, 1983. That direction was issued more than 2 years back and should have, in the ordinary course, culminated in some progress in the form of orders of conferment or denial of perpetual lease rights depending upon whether the benefits were found to be entitled to the same. Unfortunately, however, the DDA does not appear to have taken any steps in the direction of implementing the direction issued by this Court. We are told that the process of verification and conferment of perpetual lease hold rights is undertaken by the Old Scheme Branch of the DDA which is headed by the Director, Lands(Old Scheme). In the absence of any material before us to show that the officer concerned has taken suitable steps in the direction of implementing the order passed by this Court in W.Ps.(C)4828-29/2005, we are inclined to proceed against him for the disobedience of the said order. We say so especially because it is only after the said process is completed that the present writ petition, which has been ordered to be heard expeditiously for final disposal in terms of the directions of the Supreme Court, can be

disposed of. The failure on the part of the DDA to implement the direction issued by this Court not only results in frustration of the orders already issued but also prevents this Court from passing effective orders in the present writ petition as directed by the Supreme Court.

6. In the circumstances, we deem it just and proper to direct the Director, Lands( Old Scheme) of the DDA to state on affidavit the steps that have been taken by him pursuant to the directions issued by this Court dated 21st February, 2006. The Director shall also indicate the time frame within which the case of respondent No. 2 can be finally dealt with and disposed of as regards his claim for conferment of lease hold rights is concerned. The needful shall be done by the Director within two weeks. Post again on 29th April, 2008. The Director shall remain present in person on that day together with the relevant records."

5. On 25th February, 2009, the DDA was directed to file the status

report in respect of survey carried out pursuant to orders dated

21st February, 2006 and 7th April, 2008 of this Court. The relevant

portions of the said status report filed by the DDA (pages 389 to 392)

are as follows:-

"2) That vide order dated 25.2.09, the DDA had been granted time to file a status report of the survey conducted pursuant to the directions of this Hon‟ble Court wherein, it had been directed that the deponent hereunder should state on affidavit the steps that have been taken by the department to ascertain the eligibility of Chullah tax payers of Village Todapur for grant of lease hold rights pursuant to the directions issued by this Hon‟ble Court on 21.2.06 in Writ Petition (C) No. 4828-29/05.

The Court further directed that the deponent should also indicate the time frame within which the case of R-2 could be finally dealt with and disposed of as regards his claim for conferment of lease hold rights.

3) That it would be relevant to recall that the Govt. of India had taken a policy decision on 18/07/83 to grant perpetual leasehold rights to the residents of Village Nangli Razapur, Arakpur Bagh Mochi, Dasghara, Todapur and Jhilmil Tahirpur subject to certain conditions which were set out in the said Office Memorandum.

The office order dated 18.7.83 has been annexed by the DDA with its additional affidavit on 2.12.02 and is at pages 224-225 of the paper book and the typed copies are at pages 226-227 of the paper book. The said Office Memorandum further directed the DDA to take action for making necessary allotment to residents in these villages on the terms and conditions mentioned in it.

4) That the respondent No. 2 in the present petition also claims the benefit of the said order of the Government of India and has therefore, filed an application to the DDA for grant of perpetual lease hold rights in Village Todapur.

5) That in compliance of the orders passed by this Hon‟ble Court, meetings were held on 13.5.08 , 20.6.08 and 1.7.08. However, the SDM, Delhi Cantt, Chairman of the meeting did not attend the said meetings on any occasion. The Commissioner, LD vide letter dated 7.7.08 requested the D.C.(South/West), GNCTD to direct the SDM, Delhi Cantt to take immediate action as Chairman of the Committee for submission of report in compliance of the court orders.

In response, the D.C. (South/West) sent letter dated 15.7.08 stating that the matter essentially concerns the DDA and the Hon‟ble Lt. Governor of Delhi had approved only a camp approach for the purpose of identification by a team comprising of the representative of the LM & OSB Branch of DDA, wherein officers from the concerned Deputy Commissioner‟s Office as well as Civil Supplies Departmental should also be asked to be present. It was further clarified in the said letter that it would be in the fitness of things to reconstitute the Committee headed by the officer of the

DDA.

6) That in view of the above note by the D.C. (SW), GNCTD, the Vice Chairman, DDA constituted a Committee consisting of the following officers:-

                1.    Dy. Director. (OSB)              - Chairman
                2.    Dy. Director. (Land), LM         - Member
                3.    Co-ordinating Officer            - Member
                      (Damages)
                4.    Tehsildar (Nazul)                - Member
                5.    Tehsildar (Revenue)              - Member
                      of concerned
                      Sub-divisions of GNCTD

The meetings were thereafter, held on 17.9.08, 30.9.08, 17, 18, 19, 20 and 21.11.08. It was found that there were 188 applications that were received from the residents of Village Todapur requesting for the grant of leasehold rights in respect of the property under their occupation.

7) That after going through all the applications and documents, the Committee found that none of the applicants were found eligible for the grant of lease hold rights. The reason for non-eligibility are recorded in the table alongwith the present affidavit. The said table is annexed hereto and marked as ANNEXURE AA-1.

A copy of the detailed Action Taken Report is annexed hereto and marked as ANNEXURE AA-2.

The respondent no. 2 is at serial No. 41 in the table.

8) That thus it is clear from a perusal of the table and report that the residents of Village Todapur who had applied for grant of lease hold rights, including the respondent no. 2, are not entitled for the rights of lease on the basis of the Office Memorandum of the UOI. Hence, the structures of the respondent no. 2 cannot be regularized."

A copy of detailed action taken report was also filed along with

the status report.

6. As per the status report filed by the DDA, respondent No. 2 has

not been found entitled for rights of lease and use. As per the DDA,

the structures of the respondent No. 2 cannot be regularized. In view

of status report having been filed pursuant to our directions, nothing

further survives in the present writ petition. The DDA is entitled to

take action against respondent No. 2 in accordance with law.

Needless to say that, it will be open for the respondent No. 2 to take

recourse to all remedies available to him in law including a challenge

to the findings of the DDA that he is not entitled for rights of lease

and that his structures cannot be regularized.