Surya Prakash Gupta vs Government Of Nct Of Delhi & Ors.
2011 Latest Caselaw 5069 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of decision: 14th October, 2011.

+                         W.P.(C) 6623/2011

%      SURYA PRAKASH GUPTA                        ....Petitioner
                   Through: Mr. Sanjeev Sachdeva, Sr. Adv. with
                            Mr. Gaurav Gupta, Mr. Rook Ray &
                            Ms. Priyam Mehta, Advs.

                                    Versus

       GOVERNMENT OF NCT OF DELHI & ORS. ..... Respondents
                  Through: Mr. Sanjay Kumar Pathak, Adv. for
                           R-1.
                           Ms. Shobhana Takiar, Adv. for R-2.
                           Mr. Kapil Dutta, Adv. for R-3.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.     Whether reporters of Local papers may
       be allowed to see the judgment?                      Not Necessary

2.     To be referred to the reporter or not?               Not Necessary

3.     Whether the judgment should be reported
       in the Digest?                                       Not Necessary

RAJIV SAHAI ENDLAW, J.

1. The petitioner, a resident of the residential colony of Vasant Kunj,

New Delhi, claims rights in land ad-measuring 2 Bighas and 4 Biswas (2200

sq. yds.) in Khasra No.156 situated in village Lado Sarai, Delhi. He admits,

that the said land was notified under Section 4 of the Land Acquisition Act,

1894 vide Notification dated 13.11.1959; that a declaration under Section 6

of the Act with respect to the land was notified on 30.03.1967; that upon

challenge, the said acquisition was quashed vide order dated 30.11.1970;

that thereafter on 13.04.1971 another Notification under Section 4 of the Act

with respect to the land was issued followed by declaration under Section 6

on 16.09.1971; that the challenge to the same failed, finally on 24.03.2005.

2. The petitioner claims to have "purchased" the said land; neither any

date of "purchase" nor any particulars thereof are pleaded; however, the

petitioner as annexures to the petition has filed photocopies of Power of

Attorney, Will, Memorandum of Understanding in his / her favour. The

petitioner further claims to have been put into possession of the land. It is

further pleaded that the construction on the land was thereafter sealed by the

respondent No.3 MCD.

3. The petitioner avers that employees of respondent No.2 DDA, on

04.07.2011, started plantation activity around the land and this petition was

filed on 09.09.2011 averring that the respondent No.2 DDA had started

digging the boundary wall around the land in order to build its own

boundary wall and thereby take forcible physical possession of the property.

4. The petitioner in this petition has sought to restrain the respondent

No.2 DDA from constructing a boundary wall and from taking over

possession of the property.

5. When the petition came up before this Court first on 09.09.2011, the

senior counsel for the petitioner stated that the land adjoining to the said land

has been de-notified under Section 48 of the Land Acquisition Act; that the

right of the petitioner to apply for de-notification under Section 48 of the Act

will be extinguished if the petitioner is dispossessed from the land and

would also affect the claim of the petitioner for compensation.

6. Notice of the petition was issued and it was observed that the rights if

any of the petitioner shall remain unaffected by the acts of the respondent

No.2 DDA.

7. The counsel for the respondent No.2 DDA on 16.09.2011 informed

that the acquisition of the subject land was vide the same Notification as

subject of Nagin Chand Godha Vs. Union of India 2003(70) DRJ 721 (DB)

and in which judgment it was recorded that symbolic possession of the entire

land had already been taken.

8. The counsel for the respondent No.2 DDA on 29.09.2011 also

produced before the Court the record of taking over of the possession of the

land on 22nd September, 1986 i.e. much prior to the filing of the present

petition. However, the senior counsel for the petitioner on that date citing

para 16 of the National Thermal Power Corporation Ltd. Vs. Mahesh

Dutta (2009) 8 SCC 339 contended that taking over symbolic possession

was not sufficient and unless actual possession was taken over, the provision

of Section 48 (supra) will continue to apply. However, this Court on a

reading of the said judgment did not find any merit in the contention of the

petitioner. Reference was also made to Dr. Rajbir Solanki Vs. Union of

India 2008 (101) DRJ 577 (DB) and Kamaljeet Singh Vs. State 2008 (101)

DRJ 582. Attention of the senior counsel for the petitioner was also invited

to Narmada Bachao Andolan Vs. State of Madhya Pradesh AIR 2011 SC

1989 laying down in para 124 that no strait-jacket formula can be laid down

for taking the possession of the land and it would depend on the facts of each

case. It was thus observed by this Court on 29.09.2011 that the burden of

proof to establish, by leading clear and cogent evidence, that possession had

in fact not been taken over was on the petitioner and discharge of which

burden required recording of evidence and for which writ proceedings are

not appropriate remedy. The senior counsel for the petitioner on that date

sought time to take instructions with respect to the document produced of

taking over of the possession. The matter was adjourned to today.

9. The senior counsel for the petitioner today seeks further time.

10. The matters cannot be adjourned and kept pending in such fashion.

Adjournment as such has been refused. The senior counsel for the petitioner

then contends that though the writ petition may be dismissed but since a

representation has been made under Section 48 of the Act and is pending,

the observation earlier made that the factum of taking over possession will

not affect the rights if any of the petitioner under Section 48 be continued.

However, in the face of document of taking over of the possession and

without the petitioner establishing that possession was not so taken over (as

held in para 44 of National Thermal Power Corporation Ltd. (supra) that

the petitioner is required to lead clear and cogent evidence to establish to the

contrary), such observation cannot be made. The Supreme Court in State of

Uttranchal Vs. Sunil Kumar Vaish MANU/SC/0941/2011 has deprecated

the practice of keeping the issues alive in such manner. Any such

observation by this Court has the potential of leading the authorities dealing

with the representation under Section 48 to believe that this Court required

them to treat the matter as if possession has not been taken when the

petitioner has not even taken the appropriate proceedings to establish the

same.

11. The senior counsel for the petitioner then contends that the said land is

part of the unauthorized colony which is subject matter of regularization. It

is contended that the respondents are prohibited by the National Capital

Territory of Delhi Laws (Special Provisions) Act, 2011 also from taking

over possession.

12. However, the same presumes that possession has not been taken when

in fact it has been. Moreover, the National Capital Territory of Delhi Laws

(Special Provisions) Act, 2011 is intended to provide protection to residents

of unauthorized colony. The petitioner as aforesaid is not a resident of the

aforesaid land but is a resident of the colony of Vasant Kunj. No benefit

thereof can also be given to the petitioner.

13. Mention may also be made of the recent judgment dated 11.10.2011

of the Apex Court in Suraj Lamp & Industries Vs. State of Haryana

MANU/SC/1222/2011 laying down that an Agreement to Sell / Power of

Attorney / Will transaction does not convey any title or create any interest in

an immovable property and cannot be recognized as deeds of title. For this

reason also, the petitioner cannot be said to be having any right in the land.

The petitioner is clearly a interloper who claims to have acquired rights in

land after the challenge to acquisition had failed and having already been

dispossessed, has no equity in his favour to stall a public project.

14. There is thus no merit in the petition. The same is dismissed. No

order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) OCTOBER 14, 2011 „gsr‟