Surender Tomar vs D.D.A. And Anr
2011 Latest Caselaw 3977 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                          Date of decision: 16th August, 2011
+                  W.P.(C) 5376/2011 & CM No.10937/2011 (for stay)

         SURENDER TOMAR                                   ..... Petitioner
                     Through:             Mr. Yogesh Kumar Dahiya, Adv.

                                     Versus
         D.D.A. AND ANR                                 ..... Respondents
                       Through:           Mr. Shobhana Takiar, Adv. for
                                          DDA.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may              not necessary
         be allowed to see the judgment?

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

3.       Whether the judgment should be reported            not necessary
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The counsel for the petitioner seeks time to rejoin to the counter affidavit of the respondent No.1 DDA.

2. The counter affidavit of the respondent No.1 DDA was handed over to the counsel for the petitioner on 5 th August, 2011. The counsel for the petitioner himself admits that he has had two weeks to respond.

3. Further adjournment cannot be granted since the petitioner is enjoying the interim order.

4. The writ petition has been filed to restrain the respondent No.1 DDA from carrying out demolition and / or from taking possession and / or from dispossessing the petitioner from property bearing plot No.41-A forming part of Khasra No.2727/1674 in village Kishangarh, New Delhi.

5. The counsel for the petitioner admits that the petitioner has no right or title in the land aforesaid. His only argument however is that the property aforesaid of the petitioner is part of the unauthorized colony of Kishangarh to which a Provisional Regularization Certificate has been issued. The counsel for the petitioner further admits that there have been two prior proceedings, one a writ petition being W.P.(C) No.9131/2008 by an Association of the residents of the said unauthorized colony and of which Association the petitioner is a part and the other a suit being CS(OS) No.162/2003 filed by the father of the petitioner and in both of which petitioner remained unsuccessful in getting the relief. The counsel for the petitioner further admits that petitioner and his father have given an undertaking not to come in the way of the work of road widening underway.

6. The respondent No.1 DDA in its counter affidavit has stated that the property of the petitioner including the portion, with respect to which

interim order was granted on 29 th July, 2011 is coming in the way of the work of road widening.

7. The only argument of the counsel for the petitioner is that the property of the petitioner is not coming in the way of road widening. The counsel for the petitioner has handed over in the Court a lay out plan. He states that the same was attempted to be filed in the Registry and remained under objection. He states that the extract of the said lay out plan has been filed at page 93 of the paper book and on the basis whereof the interim relief was granted to the petitioner on 29th July, 2011. He further contends that since the respondent No.1 DDA has not filed any documents whatsoever along with its counter affidavit, the petitioner will now have to collect all the documents and to show that the property of the petitioner is not in the way of the road widening work underway. The counsel for the petitioner further states that out of 300 sq. yds. of the property of the petitioner, about 50 to 60 sq. yds. does not even fall within the green belt.

8. As aforesaid, the petitioner has had enough opportunity to place the documents. It cannot be forgotten that because of the interim order of this Court, the public work of widening of the road is held up. The rights of the petitioner have to be seen in the said context. It is an established principle now that the element of public interest is to be considered while granting any interim relief (see Smt. Ishmali Devi Vs. DDA MANU/DE/1838/2009 where case law in this regard is discussed). The

petitioner having no right to the property which is admittedly situated within an unauthorized colony, is not found entitled to perpetuate the interim relief, the effect whereof is to hold up the public work of road widening affecting the public at large. Else, as far as the contention of the petitioner of 50 to 60 sq. yds. portion / area of his property not falling in the green belt is concerned, the same are questions of fact and which cannot be gone into in this writ jurisdiction. There is thus no merit in the petition; the same is dismissed. No order as to costs.

Dasti under signature of the Court Master.

RAJIV SAHAI ENDLAW (JUDGE) AUGUST 16, 2011 'gsr'