Anil Tyagi vs Delhi Development Authority
2011 Latest Caselaw 5982 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

                                             Decided on: 8th December, 2011

+              W.P.(C) 8573/2011 and CM 19391/2011

IN THE MATTER OF

ANIL TYAGI                                               ..... Petitioner
                         Through:      Mr. N.P. Singh, Advocate

                    versus

DELHI DEVELOPMENT AUTHORITY                  ..... Respondent
                   Through: Mr. Ajay Verma, Advocate with
                            Mr. Mukesh Kumar, Advocate

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J. (ORAL)

1. The present petition is filed by the petitioner praying inter alia for

quashing of the order dated 21.11.2011 passed by the respondent/DDA

in respect of the property bearing No.S-530, School Block-II, Shakarpur,

Delhi, calling upon the petitioner to remove his belongings from the

subject premises within 15 days from the date of passing of the order.

2. Learned counsel for the petitioner states that the impugned order is

arbitrary and illegal inasmuch as it has not taken into consideration the

circular issued in the year 1977 by the Government of India, Ministry of

Works and Housing. It is the case of the petitioner that as per the

aforesaid circular, even though the land of the petitioner was acquired

vide Award No.7/1969, in view of the fact that the colony itself was

directed to be regularized, it was decided that the construction carried out

in the said colony upto the year 1977 would also be regularized by the

respondent/DDA as per a Resolution passed by the Ministry of Works and

Housing, Govt. of India. In support of the said submission, counsel for

the petitioner seeks to rely on Annexure P-7, which is stated to be a copy

of a précis of the resolution passed by UOI, approving the modified layout

plan from Shakarpur Complex. It is further stated by counsel that as the

petitioner is in possession of the subject property ever since the year

1986, when he had purchased the same, and has remained in

uninterrupted possession thereof till date, he is entitled to continue

remaining in possession of the subject land.

3. It is pertinent to note that this is the third round of litigation in

respect of the subject premises. The first round of litigation was initiated

by the petitioner and his brother Shri Sanjeev Tyagi by filing a writ

petition, registered as W.P.(C) 13426-27/2005, which was disposed of

vide order dated 16.02.2010. In the said writ petition, the grievance of

the petitioner was that the respondent/MCD was proposing to take

demolition/sealing action in respect of the subject premises. Notice was

issued on the said petition on 05.10.2005. However, in the order passed

on 16.02.2010, the statement of the counsel appearing on behalf of

respondent/DDA was recorded that the land in question had been

acquired by the DDA by virtue of an Award passed in respect thereof,

which fact was, however, disputed by the petitioner. The said writ

petition was finally disposed of with directions issued to the petitioners to

approach the respondent/DDA alongwith necessary documents to satisfy

the respondent/DDA with regard to their right and status over the land.

Further directions were issued to the respondent/DDA to dispose of the

representation of the petitioners within a period of six weeks. The said

representation of the petitioners was considered by the respondent/DDA

and an order dated 08.04.2011 was passed by the Assistant Director

(ML), DDA (Annexure P-13), wherein it was observed that the land in

question was acquired, possessed and placed at the disposal of the

respondent/DDA vide Award No.07/1969. As a result, the petitioners

were called upon to remove the unauthorized construction from the DDA

land, failing which, it was directed that the encroachment would be

removed at the risk and cost of the petitioners.

5. Aggrieved by the aforesaid order and the demolition action sought

to be taken by the respondent/DDA on the passing of the said order, the

petitioner and his brother filed a second writ petition, registered as

W.P.(C) 3944/2011, wherein it was their contention that though they

had been granted a personal hearing, they would be satisfied if yet

another personal hearing was granted to them and they would be

permitted to place on record all the relevant documents before the

respondent/DDA for it to pass a reasoned order. The said request of the

petitioners was acceded to vide order dated 1.6.2011 and the

respondent/DDA was directed to grant yet another personal hearing to

the petitioners and pass speaking order thereafter. It was further

directed that in case an adverse order would be passed, the petitioners

would be given reasonable time of at least two weeks to vacate their

premises. The parties were directed to maintain status quo with regard to

the title and possession of the land and it was further directed that no

third party right would be created in the subject premises. Lastly, it was

ordered that in case an adverse order would be passed, the occupants

would remove their belongings within a period of two weeks from the date

of passing of such an order. In the interregnum, the petitioners were

called upon to file an undertaking in terms of the aforesaid order, which it

is stated by the learned counsel for the petitioners, was duly filed.

6. Pursuant to passing of the aforesaid order, the petitioner filed yet

another representation before the respondent/DDA, which has been

decided by the impugned order dated 21.11.2011, wherein it was

observed by the respondent/DDA that though the School Block,

Shakarpur Complex was regularized vide Resolution No.107B, however,

the said resolution clearly mentioned that any construction included in the

regularization plan, which had come up on land owned by DDA, MCD and

Govt. of India, could not be considered as a part of the approved plan and

would be deleted. It was further observed that the subject premises was

a part of facilities and as such not a part of the approved layout plan

available in the record of the respondent/DDA and that the same was duly

shown to all the concerned parties in the course of the hearing. It was

reiterated that the land in question was validly acquired under Award

No.7/1969 which was never challenged by the petitioner at any stage. It

was further observed that the documents of purchase of the subject

premises produced by the petitioner were of the year 1986, which was

much after the acquisition of the land and the notification issued under

Section 22(1) of the DDA Act dated 16.02.1972. With the aforesaid

observations, the representations of the petitioner and his brother were

rejected and they were called upon to vacate the subject land within 15

days. It is also pertinent to note that as per a communication dated

01.09.2011 by the Naib Tehsildar, the subject premises is a part of land,

duly acquired by DDA, which is required for an approved project of Delhi

Government for the construction of a Dispensary.

7. This Court has examined the order dated 21.11.2011. A perusal

thereof shows that there is no illegality, arbitrariness or perversity therein

which requires interference by this Court in judicial review. It is neither

disputed that the land in question was acquired vide Award No.7/1969,

nor is it the case of the petitioner that the said Award was challenged by

him or his brother. The grievance raised by the petitioner that the

subject land if acquired can only be treated as Nazul land by the

respondent/DDA and that it cannot be used for any other purpose, cannot

be a subject matter of consideration in the present proceeding as the

question to be considered here is whether the possession of the petitioner

in the subject land is legal and valid. For the aforesaid reasons and

having regard to the undertaking given by the petitioner and his brother,

as recorded in the order dated 01.06.2011 passed in W.P.(C) 3944/2011

that in the event of an adverse order being passed, both of them would

vacate the subject land within two weeks, while directing the petitioner to

make compliances in terms of the aforesaid undertaking, the present

petition is dismissed in limine as being devoid of merits alongwith the

pending application.

                                                      (HIMA KOHLI)
DECEMBER     8, 2011                                      JUDGE
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