Okhla Vihar Social Welfare ... vs Union Of India & Ors
2012 Latest Caselaw 4888 Del

              THE HIGH COURT OF DELHI AT NEW DELHI

%                                                 Judgment delivered on: 22.08.2012
+                     LPA 915/2011

OKHLA VIHAR SOCIAL WELFARE ASSOCIATION                                   ... Appellant

                                         versus

UNION OF INDIA & ORS                                                ... Respondents
Advocates who appeared in this case:
For the Appellant   : Mr Mohammad Sajid.
For the Respondents : Mr Himanshu Bajaj for R-1.
                      Ms Zubeda Begum and Ms Sana Ansari for R-2.
                      Mr Anil Mittal and Mr Amritansh Batheja for R-3.
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SIDDHARTH MRIDUL

                                       JUDGMENT

BADAR DURREZ AHMED, J (ORAL)

1. This Letters Patent Appeal is directed against the order dated

20.10.2011 passed by a learned Single Judge of this court whereby the

appellant's writ petition WP(C) No.7602/2011 was dismissed with heavy

costs of ` 1 lakh. The question involved pertains to regularization of the

appellant's colony which is known as Okhla Vihar, Jamia Nagar, New

Delhi-110025.

2. The learned Single Judge dismissed the said writ petition on three

counts. Firstly, according to the learned Single Judge this court did not have

the jurisdiction to entertain the writ petition and the appellant ought to have

approached the Allahabad High Court, if at all, inasmuch as the

apprehension of dispossession, which the appellant had, was at the hands of

respondent No.3 (State of U.P.). The second ground on which the writ

petition has been dismissed is that of delay and laches. According to the

learned Single Judge since the appellant had sought the quashing of the

notice dated 27.05.2005 which was published on 16.06.2005, the writ

petition was filed after an inordinate delay inasmuch as the writ petition was

filed in 2011. The third ground for dismissal of the writ petition was that the

petition was barred by constructive resjudicata inasmuch as the same issue

had purportedly been considered in respect of residents of the very same

colony in WP(C) No.10579/2005, Samiuddin & Others v. Executive

Engineer and Others which had been disposed of by another learned Single

Judge of this court on 26.07.2011. In that writ petition, the petitioners therein

had withdrawn the writ petition with liberty to file a civil suit in order to get

the disputed questions of facts adjudicated. The court had granted interim

protection against forcible dispossession in that matter. However, it appears

that the petitioners therein did not file any civil suit. Now the Okhla Vihar

Social Welfare Association is before us for, inter alia, the same relief of

regularization and protection from forcible dispossession.

3. We have heard learned counsel for the parties. Insofar as the first point

is concerned we feel that the learned Single Judge has not arrived at the

correct conclusion. The property in question is situated within the territorial

jurisdiction of Delhi. It falls within the jurisdiction of this court. It is another

matter that a part of the relief was sought against one of the respondents,

namely, the respondent No.3 which happened to be the State of U.P. That

does not mean that just because one of the respondents is outside the

territorial jurisdiction of this court, the writ petition would not be

maintainable in this court on that ground alone. We are of the clear view that

the learned Single Judge had erred on this aspect of the matter. This Court

had the jurisdiction to entertain the Writ Petition.

4. Another point which needs to be set at rest is that once the learned

Single Judge felt that this court did not have the jurisdiction, he ought not to

have dealt with the merits of the matter. At this stage the learned counsel

for the appellant association submitted that he may be permitted to withdraw

this appeal as also the writ petition inasmuch as there are several factors

whereby the appellant is already protected. As such, it is not necessary for

us to examine the other aspects of the matter. One factor that was pointed out

to us was that the appellant already has a provisional certificate of

regularization issued by the Delhi Government. The said certificate is signed

by the Joint Secretary (Unauthorized Colonies) as well as by the Urban

Development Minister, Government of NCT of Delhi. The said provisional

certificate has been issued on 17.09.2008 and the same has been issued to the

residents of Okhla Vihar, Jamia Nagar, New Delhi-110025 through Shri

Mohd. Aslam, Secretary of the Okhla Vihar, SWA(the appellant herein). The

provisional certificate clearly states that Okhla Vihar, Jamia Nagar, New

Delhi, an unauthorized colony, is provisionally regularized. However, the

certificate also makes it clear that the provisional regularization certificate is

subject to the scrutiny of the requisite documents by the local body/Delhi

Development Authority/GNCTD, with regard to fulfillment of conditions

stipulated under the Regulations for Regularization of Unauthorized

Colonies in Delhi, notified by the Government of India vide notification

No.S.O.683(E) dated 24.03.2008 amended by notification No.S.O.1452

dated 16.06.2008. It is also pointed out in the said certificate that only the

unauthorized colonies fulfilling those conditions shall be considered for final

regularization.

5. Thus it is seen that the appellant already has a provisional certificate

of regularization. Furthermore, the learned counsel for the appellant drew

our attention to a communication dated 11.09.2007 which conveyed the

decision of the Lieutenant Governor of Delhi on the subject of taking

possession of the awarded land falling within the boundaries of certain

unauthorized colonies. The said communication indicates that in view of the

policy decision to regularize certain unauthorized colonies any land falling

within the boundaries of such colonies as per the survey which had been

carried out by Divisional Commissioner, whether built up or not, will not be

now taken over by the Government. Added to this is the statement of the

learned counsel for the respondent No.2 (GNCTD) made before another

Division Bench of this court on 29.11.2011 to the effect that the land in

question belongs to the Government (Sarkar Daulat Madar) but is in the

possession of the Agra Canal and, thus, there is no question of respondent

No.2 taking any coercive action.

6. It is in this backdrop that the learned counsel for the appellant states

that as long as the appellant's case for regularization is considered by the

concerned respondent as per the said policy of regularization, the appellant

does not have any remaining grievance in view of the provisional certificate

already issued and the communication of the Lt. Governor's decision as also

the statement made by the learned counsel for the respondent No.2. He only

requests that this court may clarify that the decision and observations made

by the learned Single Judge in this case as well as in the case of Samiuddin

(Supra) would not come in the way of the respondents taking a decision with

regard to regularization of the appellant's unauthorized colony. In view of

the fact that the Petitioner already has a provisional regularization certificate

and the respondent No.2 has already stated that no coercive action would be

taken while the question of regularization is pending, we permit the appellant

to withdraw this appeal as also the writ petition and make it clear that any

observations made by the learned Single Judge in the impugned order will

not be looked into while considering the case of the appellant for

regularization under the extant policy for regularization. We also feel that in

this backdrop the imposition of costs of Rs.1 lakh by the learned Single

Judge was not warranted. The appeal as well as the writ petition stands

withdrawn with the above observations.

BADAR DURREZ AHMED, J

SIDDHARTH MRIDUL, J AUGUST 22, 2012/mk