Ram Narain And Ors vs Block Development Officer (Bdo) ...
2011 Latest Caselaw 4487 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 W.P.(C) 6694/2011 & C.Ms. No.13531-33/2011

                                                   Decided on 14.09.2011
IN THE MATTER OF :


RAM NARAIN AND ORS                                          ..... Petitioners
                                Through : Mr. Rajesh Gupta with
                                Mr. Harpreet Singh, Advs.

                    versus

BLOCK DEVELOPMENT OFFICER (BDO) AND ORS
                                                       ..... Respondents
                                Through : Ms. Zubeda Begum with
                                Ms. Sana Ansari, Advs. for R-1 & 2.

CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may                  No
        be allowed to see the Judgment?

     2. To be referred to the Reporter or not?                 No

     3. Whether the judgment should be                         No
        reported in the Digest?

HIMA KOHLI, J. (Oral)

1. The present petition is filed by the petitioners praying inter alia for

directions to respondents No.1 & 2 to carry out complete demarcation of

Khasra Nos.166, 167, 168, 170 and 176 situated in the revenue estate of

village Hiranki Kushak, Alipur, Delhi, and after such demarcation, decide

whether the phirni road and pucca nala, alongside the phirni road, exist

on the common village land or encroach on private land. The third relief

sought by the petitioners is for quashing of the notices dated 6.9.2011

addressed by respondent No.1 to the petitioners informing them that they

were found to be unauthorizedly occupying certain land alongside the

phirni Road, and that they were required to remove such encroachment

by 13.9.2011, failing which the same would be removed by the

department on 14.9.2011.

2. At the outset, counsel for the petitioners confines the relief in the

present petition to prayer (III) alone, while reserving the right of the

petitioners to approach the Revenue Authorities for the reliefs mentioned

in prayers (I) & (II) of the writ petition. Leave as prayed for is granted

and present petition is confined to prayer No.(III) alone.

3. Learned counsel for the petitioner states that the genesis of the

dispute between the petitioners and respondents No.1 to 3 and the

private respondent No.4, arose in view of the fact that respondent No.4

preferred a writ petition in this Court, registered as WP(C)

No.6134/2010 entitled "Bir Singh vs. Block Development Officer &

Anr.", wherein he claimed to be in physical and cultivatory possession of

land falling in Khasra Nos. 166, 167, 168, 108, 109 and 110 situated in

the revenue estate of village Kushak (Hiranki) and that the aforesaid land

was alongside a 25-feet wide road, called phirni road. In between the

road and the land of the petitioner, there flowed a small damaged pucca

nala. It was the case of the petitioner therein that a part of his land has

been encroached upon by the MCD by constructing the aforesaid road and

pucca nala and that the said encroachment should be removed.

4. Vide order dated 28.9.2010, the aforesaid writ petition was

disposed of, on a statement made on behalf of the Block Development

Officer (BDO) that the road/pucca nala was encroaching upon the land of

the petitioner therein because of encroachment existing on the other side

of the road where the Lal Dora Abadi of the village existed. It was stated

that the encroachment was in the form of built-up structures and unless

the said encroachment was removed, the road/pucca nala encroaching

upon the land of the petitioner, could not be removed. Having regard to

the aforesaid submission made on behalf of the BDO, it was directed that

he would have the area demarcated again by involving not only the

petitioner therein but also the persons owning the structures on other

side of the road, who claimed that they were not encroaching on any

public land. MCD was also directed to be involved in the said

demarcation, which was to be completed in a time-bound manner. It

was further directed that upon the demarcation being carried out, if any

encroachment was found on the land of the petitioner therein, the same

would be removed by MCD and if any encroachment was found existing

on the other side of the road, both MCD and the BDO would remove the

same.

5. Counsel for the petitioners states that the demarcation took place

on 28.07.2011 by using Total Station Method. However, the lands of the

petitioners were not demarcated. He further states that the petitioners

had filed written objections dated 06.08.2011 before the SDM regarding

the same, and thereafter, they received the impugned notices dated

6.9.2011 issued by the BDO calling upon them to remove their occupation

from certain portions of the lands, as mentioned in the impugned notices,

by 13.9.2011, failing which the same would be removed by the

department on 14.9.2011. He submits that the notices dated 6.9.2011

were served dasti upon the petitioners only on 12.9.2011, thus hardly

leaving any time for them to avail of their remedies by way of an appeal

or for that matter, by approaching the SDM for an interim order.

6. Counsel for respondents No.1 & 2, who appears on advance copy,

questions the maintainability of the present petition on the ground that

the petitioners have an equally efficacious alternate remedy available to

them by way of an appeal under the statute, which has not been

exhausted by them and instead they have approached this Court directly

by preferring the present petition. She further states, on instructions

from her clients, that the impugned notices in question were sent by

speed post to the petitioners on 7.9.2011 and in ordinary course, they

ought to have been received by them on or before 8.9.2011, thus giving

them ample time to have assailed the said notices before the revenue

authorities. Lastly, she states that there is no allegation either in the writ

petition or in the objections filed by the petitioners before the SDM of the

area (Annexure P-6) with regard to their ownership of Khasra Nos.169

and 178, which form the subject matter of the impugned notices dated

6.9.2011.

7. On a pointed query to the counsel for the petitioners in this regard

and after going through the writ petition and the documents placed on

record, he has not been able to contradict the aforesaid submission made

by the counsel for respondents No.1 & 2, except for orally stating that the

built-up houses of the petitioners exist in Khasra Nos. 169 and 178,

subject matter of the impugned notices. In the absence of any averment

to that effect in the writ petition or for that matter in any of the

documents enclosed with the petition, particularly, the objections filed by

the petitioners before the SDM (Annexure P-6), this Court is unable to

accept the oral submissions made on behalf of the petitioners that they

had raised any grievance with regard to their claim to land situated in

Khasra Nos.169 and 178. Furthermore, a perusal of the objections filed

by the petitioners before the SDM of the area shows that references have

been made by them in respect of the Khasra Nos.166, 167, 168, 170 and

176, however, none of the notices make a mention of the aforesaid

Khasra Nos. 169 & 178. The petitioners having failed to establish any

case to show that they are occupants, much less lawful occupants of

Khasra No.169 and 178 or that the objections filed by them before the

SDM are in respect of the aforesaid Khasra Nos. 169 and 178, they cannot

seek a stay of the impugned notices which on a bare reading reveal that

they relate to the aforesaid Khasra Nos. As a result, the present petition

fails and is accordingly dismissed in limine.

8. Needless to state that if the petitioners are aggrieved by the orders

passed by the revenue authorities in respect of their objections pertaining

to some other Khasra Nos., they shall be entitled to seek their remedies

under the statute and the appropriate forum shall consider and dispose of

their petitions, uninfluenced by the orders passed in the present case.

The petition is dismissed, along with the pending applications.

HIMA KOHLI,J SEPTEMBER 14, 2011 sk