Ashok Kumar Mishra & Others vs Municipal Corporation Of Delhi & ...
2010 Latest Caselaw 274 Del

20
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      W.P.(C) 6483/2008

       ASHOK KUMAR MISHRA & ORS                .... Petitioner
                       Through             Mr. S.K. Duggal, Adv.

                     versus
       M.C.D & ORS                 ..... Respondents
                              Through       Mr. Amit K. Paul, Adv. for MCD.
                                            Mr. Saleem Ahmad, Adv. for R-2
                                            with SI Mangesh Tyagi.
                                            Mr. D.K. Sharma, Adv. for R-3.
                                            Mr. S.C. Gupta, Adv. for R-4.

CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
          ORDER

% 19.01.2010

Admit. With the consent of the parties, the matter is taken up for

final disposal.

2. The petitioner claims ownership right on the plot of land i.e. Nos.1

and 2, Banarsi Dass Building, Subhash Road, Shri Balaji Garment Market,

Gandhi Nagar, Delhi measuring 100 square yards each. The petitioner

contends that he wants to construct boundary wall with iron grills as per

the municipal bye-laws but the private respondent Nos. 3 to 6 are

obstructing and preventing the petitioner.

3. Counsel appearing for the respondent Nos. 3 to 6 objects to the

petitioner constructing any boundary wall on the ground that he is not

the owner of the said plot of land. My attention is drawn to the

agreement to sell in favour of the petitioner, in which reference is made

WPC No.6483/2008 Page 1 to a built up property. It is stated that the agreement to sell in favour of

the petitioner relates to some other property.

4. Counsel for the respondent Nos. 3 to 6 were asked, to specify and

give name and details of the owner of the land in question. It is stated by

them that as per the layout plan, the land in question is earmarked for a

primary school and therefore MCD is the owner. Counsel appearing for

the MCD states that MCD does not claim ownership right on the said land

and he has drawn my attention to the affidavit/status report filed by

them in W.P.(C) 5949/2007. In the said affidavit, the respondent, MCD

has admitted that Mr. Kishan Chand was the owner of the land in

question. The petitioner claims that Mr. Kishan Chand has transferred

the property in his favour under agreement to sell and other documents.

Counsel for the MCD states that the petitioner is entitled to construct

boundary wall without sanction of building plan as is permissible/allowed

by the building bye-laws. Similarly, SHO of police station Gandhi Nagar

had filed status report in W.P.(C) 5949/2007, stating that the petitioner

had produced documents including the judgment of this Court dated 31 st

July, 2007 in support of their contention that he is entitled to possession

of the plot of land, whereas the respondent No.3 to 6 had not filed any

documents in support of their contention.

5. The private respondents had earlier filed W.P.(C) 22074-75/2005,

which was disposed of by Dr. S. Murlidhar, J. vide order dated 31 st July,

WPC No.6483/2008 Page 2 2007. In the said writ petition the private respondents had raised the

contention that the petitioner herein is not the owner of the plot and is

trying to encroach upon the public/government land. The matter was

examined at length and pursuant to the affidavit filed by the respondent,

MCD, it was held as under:-

"5. Pursuant to the above order, the Executive Engineer-XIV, Block 5, Geeta Colony, Shahdara South Zone, MCD has filed an affidavit dated 4.4.2007 in which he has stated that after identifying the land in question through demarcation proceedings, i.e. land in Khasra No.364/338 of Seelampur Village, East Delhi, it was found that it does not belong to the MCD or any other department. It is stated that the land in question belongs to one Mr. Kishan Chand s/o Shri Ganeshi Lal. The averment in the counter affidavit reads as under:

"4. Accordingly on 18.8.2006 the Revenue Authorities carried out the demarcation proceeding with respect to the land in Khasra No. 364/338 of Seelampur Village, East Delhi and informed about the said demarcation WP(C) 22074-75 of 2005 page 2/4 proceedings to the answering Respondent on 8.9.2006. It was pointed out in the said report that according to the revenue record, the land belongs to one Mr. Kishan Chand s/o Shri Ganeshi Lal. It was also pointed out that on the said land neither MCD nor any other department has been recorded as owner of the land."

6. It has also been stated that no encroachment was found on the land in

WPC No.6483/2008 Page 3 question and therefore, no preventive action was called for pursuant to the orders passed by this Court.

7. Mr. Sugriva Dubey, learned counsel appearing for the petitioner earnestly pleads that the MCD should be asked to produce the lay out plan of the area and the resolution passed which might go to show that this is a public land belonging to the MCD. This Court is not prepared to accede to this request. The affidavit filed by the Executive Engineer refers to the demarcation proceedings as well as the revenue record which clearly show that the land belongs to Mr.Kishan Chand. This Court has no means to doubt the correctness of the affidavit filed by the MCD.

8. Mr. Dubey then states that the petitioners should be given one more opportunity to produce the revenue records which according to him, would show that the land in question belongs to the MCD. This Court notices that the affidavit filed by the MCD itself refers to the revenue records concerning this land and it has been categorically stated that the land does not belong to the MCD. The Officer swearing the affidavit would obviously be risking perjury the statement is found to be fable.

9. There is no occasion for this Court to doubt the correctness of the statement made by the officer on the affidavit. This Court finds no merit in the writ petition and is dismissed with no orders as to costs."

6. The contentions raised by the respondent Nos. 3 to 6 have already

WPC No.6483/2008 Page 4 been adjudicated and decided in the said order. The respondents cannot

be permitted to raise the said contentions all over again. The private

respondents are bound by the said observations/findings. Accordingly,

the writ petition is allowed. The petitioner can construct the boundary

wall in accordance with the building bylaws. If required, the SHO of the

area concerned will provide the necessary protection to the petitioner.

SANJIV KHANNA, J.

      JANUARY 19, 2010
      NA/P




WPC No.6483/2008                                                   Page 5