Suresh Kumar vs Gnct Of Delhi & Ors.
2011 Latest Caselaw 4353 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Date of decision: 6th September, 2011

+                                 W.P.(C) 6343/2011

%      SURESH KUMAR                                       .....Petitioner
                  Through:              Mr. S.D. Singh & Mr. Rahul Kumar
                                        Singh, Advs.

                                    Versus

       GNCT OF DELHI & ORS.                                 ..... Respondents
                   Through:             Mr. Sanjay Kumar Pathak, Adv. for
                                        R-1&2.
                                        Mr. A.S. Chandhiok, ASG with Mr.
                                        Sandeep Bajaj, Mr. B.V. Niren & Mr.
                                        Gurpreet S. Parwanda, Advs. for R-
                                        3/UOI.
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 petition seeks mandamus to the respondents to allot to the

petitioner, "alternative land" admeasuring 45 Bighas 1 Biswa at Mehrauli,

Hauz Khas and particulars whereof are given in para 22 of the petition and

to put the petitioner into vacant, peaceful, physical possession thereof and

alternatively any other land at similar location.

2. It is the case of the petitioner that his grandfather had migrated from

Pakistan to India in the year 1947; that as per the policy, he was entitled to

get land in India in lieu of land left by him in Pakistan and had made an

application dated 11.08.1948 in this regard; that though the grandfather of

the petitioner had been informed that certain land situated at village Masjid

Moth had been allotted to him but the final action of completing the

allotment and handing over possession was not taken and as such the claim

of the grandfather of the petitioner remained unsettled; that the grandfather

of the petitioner expired on 29.12.1962 and thereafter his sons including the

father of the petitioner continued to pursue the said application and the land

aforesaid in village Mehrauli, Hauz Khas, New Delhi was allotted vide

allotment letter dated 06.08.1963 and directions were issued to the Patwari

to take appropriate steps; however possession of the land was not delivered;

that the Land Claims Officer, Department of Rehabilitation continued to

examine the entitlement of the predecessors of the petitioner. Reliance is

placed on letteres dated 09.05.1967, 22.05.1967 and 22.07.1967 in this

regard. The petitioner also relies on a letter dated 21.05.1975 of the

Department of Rehabilitation to the Revenue Assistant enquiring whether

the possession of the land had been delivered to the predecessors of the

petitioner. Though in the pleadings of the petitioner nothing is stated with

respect to the period from 21.05.1975 till 08.07.2011, the counsel for the

petitioner contends that the predecessors of the petitioner and the petitioner

continued to correspond and states that the said record would be available

with the respondents and the notice of the petition should be issued and the

respondents be directed to produce the said records.

3. The letter dated 08.07.2011 of the Evacuee Property Cell of the

Government of NCT of Delhi to the Tehsildar, Civil Lines suggests that the

land which had been allotted to the petitioner was in illegal occupation of

other persons. The petitioner also relies upon the letter dated 26.07.2011 of

the Tehsildar to the Assistant Settlement Commissioner to the effect that the

land which was allotted to the petitioner was near the Yamuna and at present

there is over flow of water and identification demarcation of this land is not

possible.

4. The aforesaid would show that the claim of the petitioner is for land

stated to have been allotted as far back as in the year 1963 i.e. nearly half a

century prior to the present petition. It has been enquired from the counsel

for the petitioner as to why the petition should not be dismissed on the

ground of delay, laches, acquiescence and waiver, even if the petitioner can

be said to be having any right. The petitioner has clearly slept over his

rights if any and cannot after 50 years seek the land and in which 50 years,

rivers also have changed their course. The Supreme Court recently in

Shankara Cooperative Housing Society Ltd. Vs. M. Prabhakar (2011) 5

SCC 607 also relating to Displaced Persons (Compensation &

Rehabilitation) Act, 1954 and Administration of Evacuee Property Act, 1950

set aside the writ issued by the High Court holding that inordinate and

unexplained delay in approaching the Court in a writ is indeed an adequate

ground for refusing to exercise discretion in favour of the petitioners therein;

the delay in the said case was much less than the delay in the present case; it

was held that delay affects the rights created in the interregnum in the third

parties.

5. The counsel for the petitioner has contended that the cause of action

has accrued to the petitioner now only when the respondents have taken a

stand that the land allotted to the petitioner stands encroached and

possession thereof cannot be delivered to the petitioner. It is further

contended that there has in the past never been any denial of the claim of the

petitioner and there was thus no occasion for the petitioner to approach this

Court.

6. I am not willing to accept the aforesaid contentions. The non-delivery

of possession of the land was sufficient for the petitioner / his predecessors if

felt aggrieved to have approached the Courts. It thus cannot be said that the

cause of action had not accrued earlier. The petitioner / his predecessors

appear to have been content with the situation as prevailing then and cannot

now after such long lapse of time and in which time not only persons but

records also disappear, seek remedy.

7. Moreover, while the petitioner claims that the land was allotted in

1963, the documents filed show that in the year 1967 the verification of the

entitlement was still under process. Also, there is absolute quietus between

the years 1975 and 2011. Merely because the petitioner has been successful

in, now having made the Tehsildar and the Assistant Settlement

Commissioner write some letters, cannot revive the rights if any of the

petitioner which have long since become barred.

8. The petitioner has to himself make out a case and cannot seek a

direction for summoning of the records to enable him to make out a case,

without even making out a case for summoning of records. The petitioner

cannot make this Court commence a roving and fishing enquiry. The Full

Bench of this Court in Prakash Vir Shastri v. UOI AIR 1974 Delhi 1

refused an application seeking production of documents to find out if there

had been any violation of Article 14 and held that the petition should be

decided on the material on record and under Article 226 of the Constitution,

the Court should not embark upon a roving enquiry. The Division Bench of

this Court recently also in A.G.R. Investment Ltd. v. Additional

Commissioner of Income Tax 176 (2011)DLT 703 held that to make a

roving enquiry does not come within the ambit and sweep of exercise of

power under Article 226. The Apex Court also in A. Hamsaveni v. State of

T.N.(1994) 6 SCC 51 held that the petition can succeed only if the

petitioners make out a case but not to give a chance to establish a claim.

Similarly, in N.K. Singh v. UOI (1994) 6 SCC 98 it was held that no roving

enquiry is called for or justified within the scope of judicial review with

reference to the private rights of an individual. Yet again in Sadananda

Halo v. Momtaz Ali Sheikh (2008) 4 SCC 619 the Apex Court held that it is

not for the High Court to, at the instance of unsuccessful candidates, place

itself into a position of fact finding commission and to commence a roving

enquiry. Reference may also be made to Ratan Chandra Sammanta Vs.

UOI 1993 Supp (4) SCC 67 reiterating that a writ is issued in favour of a

person who has some right and not for the sake of roving enquiry leaving

scope for maneuvering; it was further held that where neither steps to

enforce claim are taken except sending vague representations nor any

material produced before the Court, it would be too dangerous to accept a

plea, as here, to call upon the respondents to produce their records.

9. The counsel for the petitioner has referred to para 28 in Tasnemul

Haq Vs. Union of India 141 (2007) DLT 647. However, the said writ

petition was of the year 1984 and the process of allotment in that case was

shown to be alive till the year 1982. So is not the case here.

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

order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) SEPTEMBER 06, 2011 „gsr‟