Delhi High Court
Hari Om Tyagi & Another vs Govt. Of Nct Of Delhi & Others on 10 February, 2010
Author: Sanjiv Khanna
16.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 5551/2007
% Date of decision : 10th February, 2010.
HARI OM TYAGI & ANR. ..... Petitioners
Through Mr. Rajendra Dutt, Advocate.
Versus
GOVT. OF N.C.T. OF DELHI & ORS. ..... Respondents
Through Ms. Sonia Sharma, Advocate for
respondent Nos. 1, 2 & 3-GNCTD.
Mr. S.K. Tyagi, Advocate for respondent No.4.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
O R D E R
1. The petitioners herein have alleged encroachment on rasta
bearing No. 181, village Burari, Delhi. Learned counsel for the
petitioner in this regard has drawn my attention to the Masawi in which
the figure 4 is mentioned and my attention is also drawn to field book,
Annexure P-5.
2. Consolidation proceedings in village Burari commenced in the
year 1973-74 and were confirmed in the year 1980-81.
3. It appears that the petitioner and his brothers have some dispute
with some other residents in village Burari and proceedings under
Section 133 of the Code of Criminal Procedure, 1973 were initiated.
The issue raised in the said proceedings was with reference to the
width of the rasta No. 181 and whether it was three gattas or four
WPC No.5551-2007 Page 1
gattas. SDM, Patel Nagar, Delhi was asked to conduct demarcation.
SDM, Patel Nagar, Delhi after spot inspection submitted a detailed
demarcation report in the said proceedings. With reference to figure of
4 mentioned in this masawi, the report records as under:-
".......All these signs was at the northern boundary of
Rasta No. 181. In this way the northern boundary of
Rasta No. 181 was fixed. Thereafter, on the
southern side from corner of Kayami No.25/29
towards north and after completion of Gatta of plot
No. 557 it was marked with special sign. Which was
adjacent to the wall of the said Rasta. Thereafter,
from the south eastern corner of kh. No. 552/2 who
has verified by as 35/29 from the corner of khasras
(Gosabe), the Gatte has been completed from its
eastern side and marked with special sign. All these
signs, after leaving 4 Gatte from south west corner
were joined to kh. No. 35/12 and boundary was fixed
to the south side (of Passage No. 181). On this way,
after fixing the Gatte from both sdes(sic) of passage
No. 181 it has been found that the actual width of
the passage is 3 Gatte (in vertical). However, 4, 4
Gatte has been written on both sides i.e. in East and
West in the Field book. As per the opinions of the
villagers 4 Gatte of the passage should be
completed. Which is not possible. Because this
passage has 4 Gatte in the western side. Which is
on the curve line not in vertical. Only 3 Gatte can be
created when 4th Gatta is on the curve line."
4. The demarcation report, therefore, states that figure of 4 has
been mentioned with reference to the end points of the rasta No. 181.
This is because there is a curve at the end. It is further stated that the
rastas in the entire village have a width of 3 gattas and not 4 gattas.
There was no special reason to have rasta No. 181 with four gathas.
5. As per the private respondent No. 4, the said demarcation was
conducted in proceeding under Section 133 Cr.P.C. in which brothers of
the petitioner were also parties and the said proceeding was decided
WPC No.5551-2007 Page 2
against the brothers of the petitioner. The private respondent No. 4
has also placed on record copy of the consolidation scheme as per
which width of the rasta No. 181 is 3 gattas.
6. With regard to the field book, it is pointed out that there is
overwriting in column No. 4 and figure of 3 has been overwritten by
figure of 4. My attention is also drawn to column No. 8 of the field
book where figures 4-3 are mentioned and it is stated that this refers
to 4 bigha and 3 biswa. It is pointed out that in case calculation of the
petitioner is accepted as correct, the figure in this column should be 5
bigha and 8 biswa as per mathematical calculations. The said aspect
was also examined in the demarcation report prepared by the SDM and
submitted in the Section 133 Cr.P.C. proceedings. In the said
demarcation report, it is recorded:-
"Secondly, the area of this Khasra is 4 bigha 3
biswa as entered in the Field Book and an area
has been carved out from 4/3 (184+175x1/2).
Which is also as per the consolidation's field book
photostate copy, which is considered. If 4 Gatte
in width is carved out from this area then total
area comes to 5 bigha 8 biswa and if 3 gatte in
width is carved out then it comes to 4-1.
However, it is 4-3 in Field Book. By this way too
the passage width comes to 3 Gatte."
7. The demarcation report further records that there was
encroachment in the area and steps were taken to remove the
encroachments and to ensure that the width of the rasta was/is three
gattas or about 25 feet.
8. Respondent-Government of NCT of Delhi is satisfied with the
demarcation report. In the counter affidavit filed by the respondent-
WPC No.5551-2007 Page 3
Government of NCT of Delhi , the width of the phirni or rasta was fixed
at 3 gattas. This is their categorical stand taken in the counter
affidavit. It is further stated in the counter affidavit that the Monitoring
Committee of the MCD had also gone into the question of width of
rasta No. 181 and it was got demarcated on 13th January, 2006.
Thereafter it was noticed that there was some encroachment from
agricultural side of the phirni and about two feet on abadi side.
Accordingly, demarcation was undertaken and encroachment from the
agricultural land was removed after making alignment. Thereafter,
rasta was measured and found to be 24 feet and as there was
encroachment of only one feet on the lal dora side, it was decided not
to take further action.
9. In view of the above, I do not find any merit in the present writ
petition and the same is dismissed. No costs.
SANJIV KHANNA, J.
FEBRUARY 10, 2010
VKR/NA/P
WPC No.5551-2007 Page 4
