Sanjay Tyagi & Ors vs Government Of Nct Of Delhi & Anr.
2009 Latest Caselaw 2195 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          W.P. (C) No. 7268 of 2008


                                      Date of Decision : May 21, 2009

SANJAY TYAGI & ORS.                                     .......Petitioners

                           Through:    Mr. Abhijat, Advocate


                                  Versus


GOVERNMENT OF NCT OF DELHI & ANR.                      .......Respondents

                           Through:    Mr. Sanjay Pathak and Mr.Mukesh
                                       Kumar, Advs. for Mr. Sanjay
                                       Poddar, Adv. for the LAC/R-1.
                                       Mr. Ajay Verma, Adv. for the
                                       DDA/R-2.

CORAM :


       HON'BLE MR. JUSTICE SANJAY KISHAN KAUL

       HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA


1.     Whether Reporters of local papers may be allowed to see the
       judgment?

2.     To be referred to the Reporter or not?

3.     Whether the judgment should be reported in the Digest?


SANJAY KISHAN KAUL, J. (ORAL)

+ CM APPL. No. 5859/2009 (for recall of order dt.

24.03.2009), CM APPL. No. 5860/2009 (Stay) in W.P. (C) No. 7268/2008 and CM APPL. No. 5862/2009 (for impleadment) in W.P. (C) No. 7268/2008

1. A notification was issued under Section 4 of the Land

Acquisition Act, 1894 (hereinafter referred to as the said Act) in

respect of total land measuring 77 bighas and 8 biswas situated in

Village Basai Darapur, Delhi in the year 1959. A declaration under

Section 6 of the said Act was issued on 28.01.1966. The award

No.7/97-98 was published and possession of 58 bighas and 10

biswas was taken over. It may be noticed that during this period of

time there were certain writ petitions filed challenging the

acquisition proceedings where interim orders had been passed but

the same were subsequently dismissed/vacated.

2. A second set of litigation began on some co-sharers

approaching this Court in the year 2001 alleging a policy of pick-

and-choose for carrying out demolitions on the acquired land. The

demolitions were, in fact, carried out.

3. The present writ petition was filed as according to the

petitioners, the respondents were proposing to release some of the

land acquired in the acquisition proceedings but in a pick-and-

choose manner. Not only that the petitioners alleged that the land

which had been acquired was permitted to be encroached upon by

the DDA, which itself showed that there was no need to acquire the

land for public purposes.

4. Learned counsel for the respondents, on instructions, stated

on 19.01.2009 that all representations received for de-acquisition

had been rejected. But insofar as the aspect of encroachment was

concerned, time was sought to examine the matter. It was

thereafter accepted that the land had in fact been encroached upon

by a few Kabari Shops and Jhuggis which had sprung up. A lay out

plan of an unauthorized colony of village Basai Darapur was

received by the DDA for regularization but on scrutiny of the same,

the DDA informed the Government of National Capital Territory of

Delhi by its letter dated 13.02.2009 that there could be no question

of regularization as the very plea of the applicants; of existence of

pucca structure thereon was not satisfied.

5. It was found that though on 28 occasions, complaints had

been made regarding encroachment to the SHO, programmes had

been fixed for demolition and the Lt. Governor himself had directed

prompt action at the ground level, no programme had been fixed to

remove the encroachment and the local police had sought

deferment of the same on one pretext or the other.

6. The writ petition was thus disposed of on 24.03.2009 noticing

all the aforesaid facts and the submission of the learned counsel for

the petitioner that the only relief which he now sought was that

necessary action should be carried out to clear the land within a

specified period of time. We issued a direction to the DDA to take

necessary action on or before 31.05.2009.

7. The present applications thereafter came to be filed and were

listed before the Court for the first time on 1.5.2009. Learned

counsel for the applicants took some time to file photographs of the

site as also the land for which regularization was sought. On the

proceedings being taken up on 20.05.2009, the counsel for the DDA

had shown some photographs of the site as on the previous date

which gave a completely different picture from what was set out in

the applications and thus learned counsel for the applicants sought

some time to obtain instructions and the matter was posted for

today.

8. We also directed the deponent of the affidavit in support of

the application, Mr. K.K. Sharma, to remain personally present in

Court, being the General Secretary of the Association.

9. We have heard learned counsel for the parties and the

applicants.

10. The undisputed position is that insofar as the challenge to the

acquisition proceedings is concerned, the matter came to an end

long time back. The total area of land sought to be acquired as set

out hereinabove was 77 bighas and 8 biswas. Possession of 58

bighas and 10 biswas was stated to be taken over between

31.01.2002 and 2.2.2002 when demolition action took place but no

such action took place on the remaining 18 bighas and 18 biswas,

which was heavily built up. It may be noticed that the acquisition

proceedings were already under challenge but apparently no interim

orders enured for the benefit of the owners which resulted in this

action. The challenge to the acquisition proceedings came to an

end with the dismissal of the writ petition on 12.09.2007. We may

also add that the action against 18 bighas and 18 biswas of land as

per learned counsel for the applicants was not carried out because

there was a stay order against such an action. The aforesaid stay

order had been passed in Civil Writ Petition no. 861/2002. This writ

petition has been finally dismissed on 12.09.2007 by a detailed

order and has not been challenged further.

11. A reading of the stay order shows that the petitioners

(including members of the applicants‟ association) approached this

Court with the allegation that the DDA was carrying out the

demolition in an arbitrary manner and in violation of principles of

natural justice. The finding recorded in the order is that the

possession of the land was taken over between the period

31.01.2002 and 2.2.2002. The writ petition was found to be devoid

of any merit and dismissed.

12. In view of the aforesaid position, the present case of the

applicants is really predicated on a policy of regularization of the

Government of NCT of Delhi in pursuance whereto an application

has been filed by them and a certificate of provisional regularization

was issued. We had an occasion to examine the methodology

adopted for such regularization when it was brought to our notice

that such provisional regularization certificates are issued merely on

the filing of an application and it is only thereafter that scrutiny

proceeds. The scheme of regularization contains certain essential

requirements. This scheme, which is titled as "Regulations for

Regularisation of Unauthorised Colonies in Delhi" was issued vide

notification dated 24.03.2008. The criteria for regularization is set

out in para 3 of the scheme. Clause 3.1 provides for a cut off date

for regularization as on 31.03.2002. Clause 3.3 provides as under:

"3.3 The following types of colonies or parts thereof would not be considered for regularization:

               (a)    xx               xx                xx

               (b)    xx               xx                xx

(c) Unauthorized colonies/habitations where more than 50% plots are un-built on the date of formal announcement of regularization scheme. However, plots which have been built up in the above mentioned colonies, even after 31.03.2002 and till the date of formal announcement of regularization scheme will be taken into consideration for deciding the eligibility of the colony for regularization.

(d) xx xx xx

13. It is thus obvious that the position as on 31.03.2002 is to be

considered and the unauthorized colonies, where more than 50%

plots are un-built on the date of formal announcement of the

scheme, fall within the scheme. The aforesaid is what weighed with

the DDA while issuing a letter dated 13.02.2009. It would be useful

to extract the same as under:

"Sub : Regarding deletion of Khasra No. 732, 733 & 734 min. area 58 bighas and 10 biswas of village Basai Darapur from the Layout Plan of „Extended Abadi of Village Basai Darapur‟ Unauthorised Colony.

Sir,

A layout plan of unauthorized colony i.e. extended abadi of Village Basai Darapur has been received from Unauthorised Colonies Cell, DDA which has been sent to them by your Department. As per reports obtained from the

Land Management Branch of West Zone, there is neither any unauthorized colony nor any pucca structure exists at the site. The detailed status of land is an under:

As per land record, Khasra No. 732 (12-

06), Khasra No. 4023/733 (27-19), Khasra No. 4026/2785/734 (00-10), Khasra No. 4027/2785/734 min. (36-13) acquired total area 77 bigha, 08 biswas and possession taken only area of 58 bigha and 10 biswas from LAC/L&B dated 31/1/2002, 1.2.2002, 2.2.2002 and remaining land 18 bighas and 18 biswas, no possession taken till now. After that residents of that Village filed a writ before the Hon‟be High Court and final order has been passed by the Hon‟ble High Court in favour of DDA dated 12.9.2007.

After verification of the layout plan, it has

min. approximately 58 bigha and 10 biswas must be deleted from the unauthorized colony extended abadi of Village Basai Darapur. A copy of the plan showing the land in question (in pink colour) is enclosed. In this connection, it is pertinent to mention that provisional certificate of unauthorized colony is being given on the basis of status of land/colony in the year 2002, whereas DDA has taken possession of the said land in the year 2002 itself after carrying out demolition programme."

14. The DDA has found that there is neither any unauthorized

colony nor any pucca structure existing on the site. Another

important aspect to be taken note of is that learned counsel for the

applicants, on instructions, fairly states that the photographs

produced by the respondents more or less reflect the correct

position of the site land consisting of 58 bighas and 10 biswas. In

fact the demolition action is slated for this area. The photographs

show almost a complete absence of pucca structure with only some

shanties or jhuggies. The reason for this is stated to be that the

pucca structures existing were demolished in the exercise carried

out between 31.01.2002 and 2.2.2002.

15. If the aforesaid material is taken into consideration, the

following aspects clearly emerge:

i. The challenge to the acquisition proceedings has failed and

there is no challenge pending.

ii. The applicants herein were parties who had sought to

challenge the acquisition proceedings.

iii. The demolition action was carried out in respect of 58 bighas

and 10 biswas from 31.02.2002 to 02.02.2002 and thereafter

there are only shanties existing.

iv. The photographs shown by the respondents which are

undisputedly of the land verify the existence of only shanties.

v. The DDA has also carried out an independent exercise and

found that there can be no question of regularization of the

unauthorized colony of village Basai Darapur in terms of

scheme of regularization as there are no pucca structure

existing on the land measuring 58 bighas and 10 biswas, as

communicated vide letter dated 13.02.2009.

vi. The challenge led by the petitioners to the demolition action in

Civil Writ Petition No. 861/2002 and connected matters failed

on 12.09.2007 and there was no further challenge. The

proceedings record that the possession of this land already

stands taken over.

16. We may also note the contention of the learned counsel for

the applicants that they are the co-owners of the land in question

and in fact persons from adjacent areas have encroached upon this

acquired land and let out shanties and are deriving rent from the

same. It is thus the plea that once the respondents have taken a

stand that the land is required by them, even if the regularization

would have occurred it could only be for the benefit of the

petitioners. We are not required to go into this aspect of the

matter in detail for the reason that undisputedly the land is required

by the respondents and the question before us is not as to who is to

be restored the land.

17. Learned counsel for the applicants did seek to point out to us

the order dated 24.03.2009, where we had taken note of the

instructions of the Lt. Governor. In this behalf, learned counsel has

stated that though undoubtedly in the notings dated 3.2.2009, Lt.

Governor referred to a meeting with the Minister of State for Urban

Development and for necessary action to remove the encroachment

over the DDA land, subsequently on the local political leaders‟

meeting with the Lt. Governor, a communication dated 2.3.2009

was issued requiring the matter to be examined in detail with

reference to the relevant maps on account of those persons

approaching that authority.

18. We have set out the various important factual aspects of the

case aforesaid as to our mind, it leaves no doubt that the applicants

have no rights whatsoever to seek restraint against the respondents

or seek recall of the order dated 24.03.2009.

19. The grievance of the applicants that the order dated

24.03.2009 was passed in their absence does not survive now as

we have heard the parties at length for over an hour on the merits

of the controversy.

20. The applicants have lost the challenge to the acquisition

proceedings earlier and with their case predicated solely on the

regularization scheme, they are not entitled to the benefit as the

DDA itself has verified that the parameters of the scheme are not

satisfied. The demolition action had taken place prior to the cut off

date on 31.03.2002 and the requirement of 50% area in-built up is

not satisfied. There is no factual dispute in the present case since

even if the total land area measuring 77 bighas and 8 biswas is

taken into consideration, the heavily built up area is 18 bighas and

18 biswas while for the remaining area demolition action took place

and possession was taken over before the cut off date. This area is

almost empty except for rubble at the site or the shanties erected

after the demolition action.

21. We find that the applicants are making every endeavour to

somehow prevent the respondents from exercising their rights

under the Land Acquisition Act even after their challenge has failed.

Proceedings are initiated in one form or the other and pressure

sought to be brought upon the authorities not to carry out their

lawful duties. The local police failed to give assistance for

enforcement of the rights of the DDA which is what weighed with us

for issuing the directions on 24.03.2009. We expect our order

dated 24.03.2009 to be forthwith complied with as the time period

is going to lapse on 31.05.2009 and inaction would result in

consequences for the respondents. We are also making it clear that

even during the pendency of these applications there were no

interdict against the respondents for compliance with our order.

22. We dismiss the applications being devoid of any merit with

costs of Rs. 25,000/- to be paid to the respondents within 15 days.

23. Dasti to learned counsel for the applicants and the

respondents.

SANJAY KISHAN KAUL, J.

MAY 21, 2009                             SUDERSHAN KUMAR MISRA, J.
rd