Sh. Arun Kumar Jain vs Union Of India & Ors
2011 Latest Caselaw 554 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         Date of decision: 31st January, 2011.

+                           W.P.(C) No.6199/2007

%        SH. ARUN KUMAR JAIN                                 .... Petitioner
                     Through:             Mr. N.S. Dalal with Mr. B.S. Shukla,
                                          Mr. D.P. Singh & Mr. Mahipal Singh,
                                          Advocates

                                   Versus

         UNION OF INDIA & ORS.                             ..... Respondents
                      Through:            Mr. Neeraj Yadav, Advocate for Ms.
                                          Ruchi Sindhwani, Advocate for R-2
                                          to R-5.
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 petitioner claiming to be the bhumidhar of 46 Bigha 19 Biswas of

land spread out over Khasra Nos.716(12-8), 717(2-7), 718(5-17), 719(2-0),

720(4-8), 721(8-1), 722(2-0), 723(1-5), 724(1-3), 727(3-5), 728(3-5),

1149(0-13) & 1197(0-7) in the revenue estate of village Bhatti, New Delhi

and further claiming to have bound the said land with a wall, gates and have

provided electricity connection, tube well and rooms therein and further

claiming that the respondents i.e. the Revenue Officials, Officials of the

Govt. of NCT of Delhi and of the Forest Department have on 12 th

September, 2006 illegally demolished the said wall, construction etc.

without any notice, has filed the present writ petition claiming restoration of

possession, wall, construction, tube well, electricity connection etc. as

existing earlier. Though the writ petition was accompanied with an

application for interim relief also seeking to be put back into possession of

the land, but notice only of the petition and the application was issued and

no interim relief granted.

2. The respondent No.5 Block Development Officer (South) of the Govt.

of NCT of Delhi has in response to the petition filed affidavits dated 2 nd

December, 2008, 5th October, 2009 and 28th April, 2010. In the said

affidavits, it is not controverted that the petitioner is the bhumidhar of the

land aforesaid. It is however contended that the petitioner had encroached

upon Khasra No.715 also which admittedly did not belong to him and which

belonged to the Gaon Sabha and which the Supreme Court had directed to

be handed over to the Forest Department. It is further pleaded that no

demolition action was taken with respect to the land of the petitioner and the

petitioner continues to be in possession of the land of which he is the

bhumidhar. It is further pleaded that prior to the said demolition action

demarcation was carried out on 7th September, 2006 as well as on 12th

September, 2006 and in which demarcation the petitioner was found to have

erected the boundary wall and rooms etc. on Khasra No.715. It is further

pleaded that the demarcation was done in the presence of the petitioner but

the petitioner refused to sign the same and left the site and whereafter

demolition was carried out. It is thus contended that the petitioner was fully

aware of the demarcation and the demolition and was not caught off guard.

It is also stated that yet another demarcation through Total Station Method

was also carried out during the pendency of the present petition and as per

which demarcation report also the land on which demolition action was

taken out was encroached upon by the petitioner.

3. Needless to state that the petitioner in rejoinder controverts all the

aforesaid facts and relies upon his own demarcation.

4. The counsel for the petitioner has rightly contended that the question

is, as to which is the land of the petitioner. The said question is essentially a

question of fact and which cannot be adjudicated in writ jurisdiction. The

reliance by the counsel for the petitioner on his demarcation report dated 2nd

May, 1989 to which he states that no objection has been filed is of no help

inasmuch as the respondents are also relying upon their demarcation reports.

The question as to which of the demarcation reports is accurate is also to be

determined in the proceedings before the revenue authorities as provided for

under the land laws and not in this writ jurisdiction.

5. The counsel for the petitioner then contends that even if the petitioner

was in illegal possession of the land, he could not have been dispossessed

therefrom in the manner done and the respondents ought to have instituted

suits / proceedings for his ejectment from the said land.

6. However, the petitioner forgets that this is not the case with which he

has approached this Court. The categorical case of the petitioner is that he

was in possession of his own land only and from which he has been

wrongfully dispossessed. It is not his case that he was in possession of land

of Gaon Sabha or had acquired any rights therein. The petitioner cannot

argue what he has not pleaded.

7. The matter entails a factual controversy beyond the comprehension of

the writ jurisdiction, particularly when alternative efficacious remedies are

available. The writ petition is therefore dismissed as not maintainable

leaving the petitioner to avail alternative remedies for the reliefs claimed.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) JANUARY 31st , 2011 'gsr'..