M/S Gaiety Housing & Land ... vs Union Of India & Ors.
2011 Latest Caselaw 1606 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      Date of decision: 21st March, 2011.

+                           W.P.(C) 905/2010

%        M/S GAIETY HOUSING & LAND DEVELOPMENT (P)
         LTD & ORS.                          ..... Petitioners
                      Through: Mr. Amit Khemka, Adv.

                                   Versus

         UNION OF INDIA & ORS.                          ..... Respondents
                      Through:            Mr. Kapil Dutta, Adv. for Mr. Ajay
                                          Arora & Mr. Sarjraz Ahmed,
                                          Advocates for MCD with Mr. S.L.
                                          Bairwa, Executive Engineer, MCD.
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 petitioners claim to be entitled to Property No.3/1, Rani

Jhansi Road, New Delhi comprising of land admeasuring 1027 sq.

yrds. It is the case of the petitioners that the said land is part of land

admeasuring 2.277 acres, lease whereof was originally granted to one

Sardar Nehchal Singh. The petitioners claim that the said 1027 sq.

yrds. came in their share pursuant to proceedings for partition of the

larger property. The petitioners further claim that the respondent MCD

commenced the work of digging up of the front portion of their

property without acquiring the same or without paying any

compensation therefor. This writ petition was filed to restrain the

respondent MCD from doing so.

2. Notice of the writ petition was issued. The counsel for the

respondent MCD appearing on advance notice on 11 th February, 2010

stated that as per the sanction for construction accorded on 26 th

February, 2001, some portion of the property was surrendered by the

owners for the purposes of road widening and that all the other

properties in the area had also agreed to road widening and given

possession of the extra land required for that purpose. The road

widening was also stated to be part of the project of the

Commonwealth Games. No interim order was granted to the

petitioners.

3. Subsequently, the counsel for the respondent MCD on 15th

March, 2010 handed over in the Court a letter dated 11 th March, 2010

of MCD to Director of the petitioner no.1 confirming that in lieu of

land surrendered for road widening, FAR on gross plot area would be

made available if land is surrendered free of cost.

4. The petitioners then sought confirmation from respondent MCD

that the gross plot area of their property was 1027 sq. yards.

5. This Court accordingly on 20 th September, 2010 directed the

Executive Engineer concerned of the respondent MCD to appear

before this Court to make a statement with respect to the plot size of

the petitioners and as to how much of the same had been taken for road

widening.

6. On the next date of hearing i.e. 21 st September, 2010 Mr. S.L.

Bairwa, Executive Engineer (Project), MCD appeared before this

Court and stated that he was unable to give confirmation of the size of

the plot as 1027 sq. yards. It was informed that respondent MCD had

written to L&DO in this regard but no such confirmation was

forthcoming. It was yet further informed that an area of approximately

15 ft. had been taken for road widening but out of which 10 ft.

belonged to the respondent MCD itself and only 5 ft. had been taken

out from Property No.3/1 of the petitioners. It was also contended that

the petitioners are only two out of three owners of Property No.3/1.

7. Respondent MCD since then has filed an affidavit stating that

the petitioners despite asking, had failed to supply the sanctioned

building plan of their property; that the owners of adjoining two

properties on either side of the property of the petitioners, while earlier

seeking sanction of the building plans had surrendered certain portions

of their properties in favour of the respondent MCD for road widening

in accordance with the layout plan; that the road in front of the

property of the petitioners had been widened in alignment of the road

in front of adjoining properties; that the petitioners on 25 th February,

2010 had demanded either compensation for the land or being allowed

additional FAR for the remaining plot. It was thus pleaded that the

petitioners now cannot take a plea that their land had been illegally

taken away.

8. Vide order dated 21st September, 2010 the petitioners were

directed to file the perpetual lease deed along with affidavit as to

whether any part of their plot was acquired or taken away on any

earlier occasion.

9. The petitioners have filed an affidavit in which a references is

made to a sanctioned plan of April, 1956 but the counsel for the

petitioners states that the same is not available and only the

Completion Certificate is available. With respect to the perpetual

lease, it is stated that it is of the entire plot admeasuring 2.277 acres

and not of the plot admeasuring 1027 sq. yards of the petitioners only.

The petitioners in para 3 of the affidavit have also stated that no part of

their property admeasuring 1027 sq. yards had on any earlier occasion

been acquired by the NDMC, MCD or any other Government

Authority. The petitioners have again sought measurement to be

carried out by the respondent MCD of the area taken out from the

property of the petitioners so that in future there is no dispute as to

FAR on how much land, the petitioners are entitled to.

10. Mr. S.L. Bairwa, Executive Engineer, MCD has again been

called to this Court today. While the counsel for the petitioners states

that 105 sq. m. of their property has been taken away, Mr. S.L. Bairwa

states that without record of the extent of the size of the property of the

petitioners, it is not possible to mention as to how much land of the

petitioners has been taken over for road widening.

11. The counsel for the petitioners on the contrary contends that if

there is to be any uncertainty on this aspect, the petitioners impugn the

taking over of the land itself. The counsel for the petitioners contends

that the demand for compensation or additional FAR was without

prejudice to the challenge to taking over of the land.

12. However, a perusal of the letter dated 25th February, 2010

(supra) and the affidavit does not show so. The only dispute which

now remains is as to how much land of the petitioners has been taken

over or as to what was the size of land of petitioners before the take

over for road widening impugning which this petition was filed.

13. In view of the stand that the respondent MCD is unable to make

any statement in this regard, in these proceedings, no such finding can

be returned. The measurements as sought by the petitioners, would also

in my opinion yield any result. According to respondent MCD, the co-

lessees of the petitioners as a condition for obtaining sanction for

works earlier undertaken on the property, had agreed to make land

available for road widening without claiming any compensation. It

will have to be adjudicated, whether the petitioners are also bound by

the said undertaking and whether the road could be widened only in

front of the portions of the others who had given the undertaking and

not in front of the portion of the petitioners. In fact the entire attempt

of petitioners to obtain an admission from the respondent MCD in this

petition, without having the same adjudicated and in the presence of

the other co-lessees, creates doubt.

14. I therefore do not deem it expedient to issue any direction for

measurement, as sought, in this proceeding. The petitioners would be

well advised to have the size of their plot declared in a suit, by

impleading MCD and other co-lessees etc. and by proving the same.

15. The counsel for the petitioners also denies that any such

undertaking has been given by any of the co-lessees. The counsel for

the petitioners today states that the respondent MCD had misguided

this Court on 11th February, 2010 that the petitioners had given an

undertaking and owing whereto interim order was not granted . A

perusal of that order does not show that the statement of the respondent

MCD was such. Moreover, it is not deemed expedient to make any

further observation on the factual controversy.

16. The writ petition is dismissed as not maintainable with liberty to

the petitioners to take appropriate proceedings for

declaration/determination of the area of the plot on which the

petitioners would be entitled to the FAR.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) MARCH 21, 2011/bs