Mahavir Prasad vs Govt. Of Nct & Ors.
2011 Latest Caselaw 1187 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Date of decision: 28th February, 2011.

+              W.P.(C) 9380/2009 & CM No.7200/2009 (for interim stay)

%        MAHAVIR PRASAD                                      ..... Petitioner
                     Through:             Mr. Abhay Mani Tripathi with Mr.
                                          Pramod Kumar Tyagi, Advocates.

                                   Versus

         GOVT. OF NCT & ORS.                              ..... Respondents
                      Through:            Mr. Soreishang Kharay, Adv. for
                                          Ms. Rinchen O. Bhutia, Adv. for R-
                                          1 GNCTD.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                    NO

2.       To be referred to the reporter or not?             NO

3.       Whether the judgment should be reported            NO
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The respondents no.4 to 7 and the respondent no.3 have filed their

counter affidavits. The counsel for the petitioner states that his rejoinder

thereto is ready. The same has been taken over in the Court. The counsels

have been heard.

2. The petitioner claims to have been allotted land admeasuring 5

Bighas and 13 Biswas in Khasra Nos.393 & 399 of Village-Meethapur,

Delhi and further claims to have been declared a Bhumidhar with respect

thereto in the year 1978-79; he claims that the said land is adjoining to

Khasra Nos.1032, 1033 & 1038 of Village-Molarband; that several private

parties (who are not respondents before this Court) have been raising

unauthorized construction on the land aforesaid in Village-Molarband and

have been attempting to encroach upon his land in Village-Meethapur also;

that owing thereto he had to file several suits in the Civil Court in this

regard; that proceedings under Section 81 of the Delhi Land Reforms Act,

1954 were also taken against him and an order of his eviction has been

passed with respect to his land in Village-Meethapur and against which

order his appeal before the Deputy Commissioner is stated to be still

pending; he further claims to have in or about the year 1996 filed a suit

against the respondents herein to restrain them from dispossessing him

forcibly from the said land and in which suit a statement was given by the

Block Development Officer (BDO) to the effect that the petitioner shall not

be dispossessed save by due process of law and the said suit was disposed

of on 5th October, 2004 in terms of the said statement; he further claims

that a part of the land in Village-Molarband adjoining to his land has now

been allotted for construction of a hundred bedded Government Hospital

and the respondents during the process of construction of the said Hospital,

are encroaching upon his land in Village-Meethapur also. On the

contention of the petitioner that the demarcation proceedings to demarcate

his land from the land on which the Hospital is being constructed remained

inconclusive/incomplete, notice of the writ petition was issued.

3. The counter affidavits as aforesaid have been filed. The SDM,

Kalkaji in his counter affidavit has pleaded that the land has already been

demarcated and boundary wall has been raised by the petitioner as far back

as in the year 1999; that the petitioner however has been attempting to

encroach upon the land in Khasra Nos.1033 & 1032 of Village-Molarband

also and has been filing suits with the said purpose.

4. It may also be stated that the petitioner admits having filed a civil

suit claiming to be in possession of the land in Khasra Nos. 1033 and 1032

of Village-Molarband and seeking to restrain dispossession therefrom; the

said suit was dismissed. The petitioner filed an appeal thereagainst which

was dismissed in default. The petitioner however claims that he had filed

the said suit under a misconception that his land was in Khasra Nos.1033

and 1032 of Village-Molarband and not in Khasra Nos.393 & 399 of

Village-Meethapur as now contended and owing to having realized his

mistake he did not apply for restoration of the said appeal.

5. Coming back to the counter affidavit of the SDM, it is further

pleaded that the petitioner has efficacious remedies available to him before

the District Collector if aggrieved from the demarcation done. It is further

pleaded that the question of demarcation is also subject matter of the

various civil suits which the counsel for the petitioner today also admits

are still pending, though the same are against the private parties (he

however states that in none of the civil suits, the relief of demarcation has

been claimed). It is further pleaded that owing to the pendency of the

present writ petition, the construction of the Hospital is held up. It is

pleaded that the present writ petition is nothing but an attempt of the

petitioner to retain his illegal possession of Khasra Nos.1033 & 1032 of

Village-Molarband. It is yet further pleaded that the petitioner has already

sold his land in Village-Meethapur and was now in occupation of Khasra

No.1032 & 1033 of Village-Molarband and is falsely claiming the land in

his possession to be part of Khasra Nos.393 & 399 of Village-Meethapur.

It is contended that the petitioner if aggrieved from the demarcation report,

instead of preferring an appeal thereagainst, has filed the present writ

petition to perpetuate his illegality and which is holding up a public

project.

6. The respondent no.3 the Secretary, Directorate of Health Services,

Govt. of NCT of Delhi has in his affidavit also stated that demarcation of

Khasra Nos.1032, 1033 & 1038 on which the Hospital is being

constructed, has been carried out several times.

7. The petitioner in this writ petition has sought the relief of

appointment of a Court Commissioner to carry out the demarcation and for

removal of the foundation stone of the Hospital on the land which the

petitioner claims to be in Village-Meethapur and belonging to him.

8. The petitioner in rejoinder handed over in the Court has denied the

averments in the counter affidavit of the demarcation having been carried

out.

9. It has been enquired from the counsel for the petitioner as to whether

he has applied for demarcation and if so which is the application and what

is the order thereon. The counsel for the petitioner invites attention to page

63 of the paper book being the order dated 26th December, 2005 of the

SDM, Kalkaji, New Delhi on the application of the petitioner for

demarcation and directing the Field Kanoongo to carry out the

demarcation.

10. It has next been enquired from the counsel for the petitioner as to

whether in pursuance thereto any demarcation was carried out. The counsel

for the petitioner draws attention to page 152 of the paper book being a

demarcation report dated 6 th January, 2006 and 17th January, 2006 being in

pursuance to the order aforesaid dated 26th December, 2005. It has as such

been enquired from the counsel for the petitioner that if the demarcation

has already been carried out and if the petitioner is aggrieved from the

demarcation report, his remedy would be by preferring an appeal against

the demarcation report rather than by way of this petition.

11. The counsel for the petitioner however contends that this petition is

maintainable because the petitioner in pursuance to a wrong demarcation

report has been dispossessed from his land and because the relief of re-

possession is also claimed in this petition. Attention is also invited to the

demarcation report aforesaid in which it has been observed that since there

is heavy construction on both sides of village Mithapur and village

Molarband, it is not possible to carry out the measurements and the

construction obviates the measurements. The counsel also states that the

said demarcation was in his absence.

12. I am of the considered opinion that a Court Commissioner cannot be

appointed for carrying out the demarcation which under the statute has to

be carried out by the designated persons. The counsel also admits that the

statute provides the remedy of appeal against the report of demarcation.

Merely because the petitioner has been dispossessed, would not entitle the

petitioner to be first put back into possession. The remedy of the petitioner

still is to prefer appeal against the demarcation report and if succeeds in

establishing that the land from which he has been dispossessed belongs to

him, would be entitled to the relief of re-possession. The petitioner himself

has sought the relief of re-possession only pursuant to demarcation.

13. No need is also felt for this Court to issue direction for carrying out

demarcation. The statute having provided for the remedies, and

demarcation having been carried out and the grievance being only against

the report, no fresh demarcation as sought can be directed. However if the

petitioner in the appeal against the demarcation report is able to satisfy the

Appellate Authority (which is informed by the counsel for the petitioner to

be the Dy. Commissioner) the Dy. Commissioner would be entitled to

order such fresh demarcation or issue any further directions with respect

thereto.

14. This Court without finding any title in favour of the petitioner

cannot direct the petitioner to be put back into possession as claimed.

15. The petition is therefore found to be not maintainable and is

dismissed with liberty to the petitioner to prefer an appeal against the

demarcation report aforesaid. On request of counsel for the petitioner it is

further directed that in the event of the said appeal being preferred, the

same be disposed of as expeditiously as possible, preferably within six

months from completion of service of notices on all the parties.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) FEBRUARY 28, 2011 bs/pp