Delhi High Court

Smt. Sarjo & Anr. vs D.D.A. And Anr on 29 July, 2011

Author: Rajiv Sahai Endlaw

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                               Date of decision: 29th July, 2011
+                                  W.P.(C) 9048/2008

         SMT. SARJO & ANR.                                   ..... Petitioners
                       Through:           Mr. Brajesh K. Srivastava & Mr.
                                          Dinesh Kumar, Adv.

                                      versus
         D.D.A. AND ANR                                     ..... Respondents
                       Through:           Mr. C.S. Dahiya, Adv. for R-2&3.
                                          Mr. Ajay Verma & Mr. Amit
                                          Mehra, 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 petitioners being two of the daughters of one Shri Chandgi have

filed this writ petition seeking quashing of the letter dated 29 th June, 2007

of the respondent no.1 DDA allotting in the name of the respondents

no.2&3, Plot No.26, Block-C in Village Rangpuri, in lieu of land acquired

in village Nagal Dewat.

2. It is not in dispute, that the land which was acquired was in the name

of Shri Chandgi; that Shri Chandgi died on 26th May, 1982 leaving nine

daughters and one son. Neither counsel is able to state whether the wife of

Shri Chandgi is alive or was alive at the time of demise of Shri Chandgi.

The respondents no.2&3 are the sons of the son of Shri Chandgi who died

on 3rd March, 1999.

3. A Writ Petition being W.P.(C) No.481/1982 was filed by the

residents of village Nagal Dewat whose land had been acquired. It appears

that directions were issued in the said writ petition for allotment of

alternative land in lieu of acquired land. A list of persons entitled to such

allotment of rehabilitation plot was prepared and in which the name of Shri

Chandgi found mention.

4. Certain applications came to be filed in the said disposed of W.P.(C)

481/1982 and which applications were disposed of vide order dated 18 th

May, 2005. Vide interim orders during the said proceedings, on 28 th April,

2004 a Nodal Officer was appointed to prepare a list of persons eligible

for allotment, after considering the objections of different parties. The

Nodal Officer is stated to have prepared a list which was placed before this

Court in that writ petition. This Court in the order dated 18th May, 2005

also issued certain directions/guidelines/criteria regarding allotments. It

was inter alia directed that any person whose name found mention in the

Survey Report or in the Jamabandi as on 28 th April, 1972 was eligible for

allotment of alternative plot; that if such a person has died intestate after

28th April, 1972 the legal heirs would be jointly entitled for allotment of

one plot only; that in the event of recorded owner dying after 28 th April,

1972 leaving a Will, mutation in accordance with the Will shall be carried

out; the claims for mutation were directed to be made before the Nodal

Officer within 15 days of 18 th May, 2005 and it was further directed that in

case the Nodal Officer rejected any applications, the aggrieved person

would have remedy by way of appropriate proceedings and not by way of

application in that writ petition.

5. The petitioners claim that Shri Chandgi being the recorded

bhoomidar and having died after 28th April, 1972, in accordance with the

guidelines aforesaid, the allotment of alternate/rehabilitation plot has to be

in the name of all the legal heirs of Shri Chandgi, including themselves and

has been wrongly made in the name of the respondents no.2 & 3 only.

They thus seek quashing of the allotment letter in name of respondents

no.2&3 only and issuance of allotment letter in name of all heirs of Shri

Chandgi.

6. The stand of the counsel for the respondent no.1 DDA is that the

respondent no.1 DDA has issued the allotment letter in the name of the

respondents no.2&3 in accordance with the list forwarded to it by the

ADM (SW) appointed as the Nodal Officer and thus no error can be said to

have been committed by respondent no.1 DDA.

7. It is not the case of the petitioners that they had applied to the Nodal

Officer for inclusion of their names as legal heirs of Shri Chandgi. The

petitioners however upon allotment in favour of the respondents no.2&3

have by way of this writ petition challenged the same. Notice of the

petition was issued and vide order dated 19th December, 2008 the

respondent no.1 DDA was restrained from executing the Conveyance Deed

of the plot in favour of the respondents no.2&3. The Conveyance Deed has

not been executed as yet.

8. The respondents no.2&3 in their counter affidavits have not set up

any Will of Shri Chandgi in favour of their father or in their favour. They

however contend that they along with their father were in possession of the

land which was acquired and possession whereof was ultimately delivered

only in the year 2007 and accordingly alternative plot aforesaid has been

allotted in their favour. They thus claim that since they alone were in

possession, they alone are entitled to the alternative plot.

9. The petitioners have filed CM No.4975/2011 to amend the writ

petition to implead the ADM and to challenge the mutation if any from the

name of Shri Chandgi to the name of the respondents no.2&3 only leading

to allotment in favour of the respondents no.2&3.

10. The respondents no.2&3 have filed CM No.10575/2011 contending

that another writ petition being W.P.(C) 3956/2010 though relating to

certain other family was filed on similar grounds but was withdrawn on

24th May, 2011 with liberty to file a suit. The contention of the counsel for

the respondents no.2&3 before this Court also is to relegate the petitioners

to a suit to establish their rights if any in the plot allotted, as the heirs of

Shri Chandgi.

11. I have wondered whether to allow the application for amendment,

issue notice to the ADM/Nodal Officer who had prepared the list and then

to verify the correctness thereof and/or to relegate the petitioners to a suit.

Though the respondents no.2&3 have also taken a plea of the petitioners

having relinquished their rights in their favour but admittedly there is no

registered Relinquishment Deed by the petitioners. The respondents

no.2&3 have not been able to state as to how they alone are entitled to the

estate of Shri Chandgi, it being not in dispute that the allotment of the

alternative plot is a part of the estate of Shri Chandgi. It is felt that rather

than multiplying the litigation, in the aforesaid facts the issue should be

decided in these proceedings only. This Court in exercise of powers under

Article 226 is to do substantial justice and not pass an order which would

merely lead to further litigation.

12. I have also considered the effect of the petitioners not approaching

the Nodal Officer. There is nothing in the orders in the W.P.(C) 481/1982

or otherwise in law which can extinguish the rights of the petitioners as the

heirs of Shri Chandgi for not approaching the Nodal Officer within the

stipulated time. Moreover the matter is not stale, the orders being of as late

as 2006 and the allotment of alternative plot being of immediately

preceding the filing of this petition.

13. It is also not as if any title has come to be vested in respondents

no.2&3 as yet. Challenge has been made at the stage of allotment itself.

Clause 3 of the allotment letter dated 29th June, 2007 is as under:-

"3. If it is discovered that the allotment has been obtained by suppression of any facts or by mis-statement, mis-representation or fraud or if there shall have been in opinion of the DDA, any breach of the condition of allotment the allotment is liable to be cancelled forthwith."

The respondents no.2&3 having not explained as to how they alone

came to be substituted in place of Shri Chandgi and why the petitioners are

not entitled to have their names and names of other legal heirs of Sh.

Chandgi included in the allotment letter. There is also no merit in the claim

of respondents no.2&3 of alone being entitled to allotment for the reason

of being in possession. The directions in the earlier writ petition were

unambiguous. All the legal heirs of recorded owner are entitled to

allotment. The counsel for the respondents no.2&3 in response to query

whether the Delhi Land Reforms Act, 1954 applied to acquired land has

replied in the negative and stated that the acquired land was not

agricultural but abadi land.

14. The petition therefore succeeds. The allotment letter impugned in