M/S Kapur Brothers vs D.D.A. & Ors.
2011 Latest Caselaw 3934 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI
                                 Date of decision: 12th August, 2011
+                                  W.P.(C) 23301/2005
         M/S KAPUR BROTHERS                                  ..... Petitioner
                      Through:            Mr. Sumit Bansal, Mr. Ateev
                                          Mathur & Mr. Ajay Monga, Adv.
                                     Versus
         D.D.A. & ORS.                                       ..... Respondents
                            Through:      Mr. Shobhana Takiar, Adv. DDA.
                                          Mr. Vinay Sabharwal & Ms. Neha
                                          Sabharwal, Adv. for R-3.
                                          Mr. Harpreet Singh, Adv. for R-4.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may        Yes
         be allowed to see the judgment?

2.       To be referred to the reporter or not?             Yes

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

RAJIV SAHAI ENDLAW, J.

1. The counsel for the petitioner seeks time to rejoin to the additional

affidavit of the respondent no.1 DDA. However, the writ petition being of

the year 2005 and in the facts hereinafter appearing, need is not felt to

adjourn the matter. The counsel for the petitioner then seeks a passover.

There are more than eighty matters on the Board and the matter is unlikely

to reach on passover. The counsel for the respondent no.4 Mohan

Cooperative Industrial Cooperative Society Ltd. (MCICS) has been heard.

The records have been perused.

2. The petition has been filed seeking mandamus to the respondents i.e.

DDA, MCD, Slum & JJ Wing and the MCICS to have the Plot No.E-3,

Block B-1, Mohan Co-operative Industrial Estate, Mathura Road, New

Delhi of the petitioner vacated from the unauthorized occupation of jhuggi

dwellers. The petitioner also seeks a mandamus directing the respondents

to hand over vacant peaceful physical possession of the plot to the

petitioner.

3. It is the case of the petitioner that it had become a member of

MCICS in the year 1963; that the plot aforesaid was allotted to it on 12 th

January, 1979; however the execution of the Perpetual Sub Lease Deed of

the said plot in favour of the petitioner was held up owing to disputes

having arisen between the partners of the petitioner and the petitioner itself

had intimated MCICS that the Lease Deed be executed only after

resolution of the said disputes; that the said disputes were finally settled in

or about the year 1995 but thereafter owing to demise of some of the

partners, the application for execution of the Lease Deed of the plot could

be made only in August, 2000. The petitioner admits that the Perpetual

Lease Deed was so executed in its favour on 7 th June, 2001.

4. The petitioner claims that it has w.e.f. October, 2003 been writing to

MCICS to have the encroachments on the plot cleared and finally this

petition was filed in this regard.

5. Notice of the petition was issued and the pleadings have been

completed.

6. The arguing counsel for the petitioner who has appeared now, has

invited attention to the order dated 8 th May, 2009 where this Court had

observed that to decide the writ petition it is necessary to examine whether

the encroachments i.e. the jhuggi-jhopri clusters on the plot of the

petitioner had come into existence before the land was allotted to MCICS

or thereafter and respondent no.1 DDA was directed to file an affidavit in

this regard. The same direction was reiterated in the order dated 13 th

September, 2010 and in fact the additional affidavit of the respondent no.1

DDA to which the petitioner was seeking time to respond, is in pursuance

to the said directions.

7. The respondent no.1 DDA has in its said affidavit stated that the plot

aforesaid was allotted to the petitioner on 12 th January, 1979 and as per the

terms and conditions of allotment the petitioner was to complete the

construction within a period of two years therefrom; that post allotment,

the entire correspondence of the petitioner was with MCICS only; that the

Perpetual Sub Lease of the plot could not be executed with respect to the

said plot on the request of the petitioner itself for the reason of inter se

dispute between the partners of the petitioner and was executed

immediately upon the petitioner approaching DDA in this regard. The

respondent no.1 DDA has further stated that it has thus no role to play in

removing the jhuggi clusters over the said land. The stand of the

respondent no.1 DDA today also is that it has no liability to remove the

encroachments on the land and the obligation if any for keeping the land

free from encroachment was not of the respondent no.1 DDA.

8. The counsel for the petitioner states that the said affidavit is not in

compliance of the direction contained in the order dated 8 th May, 2009 and

it has not been categorically stated as to when the encroachments were

made.

9. I do not agree. The stand of the respondent no.1 DDA in the

additional affidavit is that the possession of the land was delivered to

MCICS and it was thereafter MCICS and/or the members who were

responsible for keeping the land encroachment free. That being the stand

of the respondent no.1 DDA, the respondent no.1 DDA cannot be expected

to know as to when the encroachment took place.

10. Even otherwise a perusal of the writ petition shows that the

petitioner itself has not taken any categorical stand as to when the

encroachment took place. Though the petitioner after the allotment in

1979, in the year 1989 wrote to MCICS stating that MCICS should secure

the land but even in the said letter did not state that there was any

encroachment on the land. The petitioner for the first time started

complaining in this regard only after execution of the Perpetual Lease

Deed in its favour in the year 2001.

11. Though there is no document of handing over of the possession but

the allotment letter requiring the allottee to complete the construction

within a period of two years clearly shows that the possession stood

delivered on that date itself. As aforesaid, it is not the grievance of the

petitioner that on the date of allotment also the plot was encroached. The

delay in execution of the Perpetual Lease Deed was of own making of the

petitioner. In the facts aforesaid, it appears that the land was encroached

upon after the execution of perpetual lease in favour of petitioner. Even if

the encroachment is of prior thereto, so long as it is of after 1979 when

allotment was made, the petitioner itself was responsible for securing

possession and cannot seek mandamus to respondents to remove the same.

12. I have in judgment dated 26th July, 2011 in W.P.(C) 2174/2008 titled

Bhartiya Janata Party v. UOI on conspectus of the case law on the

subject held that the land allotting agencies are required to at the time of

allotment put the allottees into vacant possession of the land and cannot

shirk from the same but the present case is the one where encroachments

have been made after the date of allotment. This Court in Anil Kumar

Sharma v. DDA MANU/DE/1095/2004 has held that DDA cannot be held

responsible for the happenings on the plot after it has put the allottee into

possession thereof.

13. Though the counsel for the petitioner has sought to argue that the

rights of the petitioner in the said land accrued only on execution of the

Perpetual Lease Deed in the year 2001 but upon it being pointed out to him

that if that be the stand of the petitioner then the petitioner would not be

entitled to the land since the rights under the Perpetual Lease Deed flow

from the allotment in the year 1979, withdrew the said contention.

14. The petitioner has also claimed the relief against MCICS. The

maintainability of the writ petition against MCICS was enquired into. The

counsel for the petitioner has relied upon S.D.Bhaskar v. Ishwar Nagar

Cooperative House Building Society Ltd. 45 (1991) DLT 518. However

the said judgment itself holds that the dispute between a society and its

member cannot be determined in a writ petition and the exception is only

in certain cases. The present case does not fall in the excepted category.

Even otherwise it has been enquired from the counsel as to what is the

mechanism available with MCICS for having the encroachment removed.

The counsel is unable to point out any mechanism available to MCICS and

relies upon the mechanism available to the respondent no.1 DDA for

removal of the encroachment. However as aforesaid, the respondent no.1

DDA had allotted the land to the society much prior to the 1979 and it is

not the case that the society was not put into possession of the land out of

which the plot allotted to petitioner was carved out.

15. Thus the relief as sought against MCICS cannot be granted and the

petitioner is not found entitled to any right as claimed against the

respondent no.1 DDA.

16. The State machinery cannot be directed to be used for private

purpose of the petitioner.

17. The counsel for the petitioner states that the observations in this

petition of the possession having been delivered to the petitioner in 1979 as

contended by MCICS may prejudice the claims of the petitioner in the

Suit/Suits for possession to be filed by the petitioner.

18. It is accordingly directed that this Court having not adjudicated the

said aspect, it will be open to the parties to take their respective stands in

the Suit if any filed by the petitioner and any observation herein will not

affect the finding to be arrived at in the said Suit.

19. There is thus no merit in the petition; the same is dismissed. No

order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) AUGUST 12, 2011 PP