Rati Ram And Anr. vs Delhi Development Authority And ...
2012 Latest Caselaw 719 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P.(C) 3503/1992

                                                         Decided on: 02.02.2012
IN THE MATTER OF
RATI RAM AND ANR.                                           ..... Petitioners
                          Through: Mr. Vishal Singh, Advocate
                     versus

DELHI DEVELOPMENT AUTHORITY AND ANR.                  ..... Respondents
                   Through: Ms. Sangeeta Chandra, Advocate for
                   respondent No.1/DDA.
                   Mr. R.N. Singh, Advocate with Mr. A.S. Singh,
                   Advocate for respondent No.2/ASI.

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI


HIMA KOHLI, J. (ORAL)

1. The present petition had been filed by the petitioners in

September 1992 claiming inter alia that a plot of land measuring 1127

square meters (11 Bigha 17 Biswas), which forms part of Khasra No.144/84

situated in the revenue estate of village Sarai Sahaji, Delhi, has been jointly

purchased by various persons including their ancestors much prior to the

year 1948-49. The petitioners claimed that ever since then, they and their

family members had remained in actual cultivatory possession and

occupation of the said land, constructed various structures on the land

including a boundary wall to secure the plot of land and invested large sums

therein. Some photographs were enclosed with the petition to show the

cultivatory possession and occupation of the petitioners in the land in

question.

2. The entire claim of the petitioners to the subject land is

predicated on a Jamabandi entry in the revenue records of the respondents

relating to the year 1948-49. As per the petitioners, on 26.09.1992, the

officers of respondent No.2/Archaeological Survey of India (in short „ASI'),

visited the property in question and started to interfere in their peaceful

possession of the subject land. Apprehending their alleged illegal

dispossession, the petitioners had filed the present writ petition stating inter

alia that the subject land had neither been acquired by the Government, nor

had the property in question been notified under the Ancient Monuments and

Archaeological Sites and Remains Act, 1958 (hereinafter referred to as „the

Act') or under the Public Premises Act or any other Statute and, therefore,

the petitioner should be permitted to enjoy their peaceful cultivatory

possession in the subject land.

3. Notice was issued on the present petition on 20.10.1992. On

11.11.1992, counsel for respondent No.2/ASI had stated that the land in

question had been notified under the Act and that the possession of the said

land was with respondent No.2/ASI. After the pleadings were completed,

vide order dated 29.01.1993, status quo with regard to possession of the

land as existing on the said date, was directed to be maintained. Thereafter,

the proceedings recorded on 12.08.1993 are material and are reproduced

hereinbelow:-

"Mr. Jagdev Singh has produced in Court the record showing that the ownership of the property in question was not of the petitioner. The document which is placed before us is prepared by Shri Baljit Singh, Patwari who has also issued a document which has been placed on record by the petitioner, which purports to show that the ownership was transferred in favour of the joint owners by virtue of Mutation No.517. This document signed by Shri Baljit Singh, Patwari and filed by the petitioner is dated 13th October, 1992 and, interestingly enough, the document placed before us by the respondents is signed by Shri Baljit Singh, Patwari on 19th November, 1992.

Shri Baljit Singh, Patwari is directed to be present in Court on the next date of hearing with the latest revenue record including the Jama Bandi as well as Khasra Girdawari, as also the order pertaining to Mutation No.517, showing as to who is the owner of Khasra No.144/84.

To come up on 24th September, 1993.

Interim orders to continue."

4. Vide order dated 10.08.1994, Rule was issued in the writ petition

and the status quo order passed earlier, was confirmed. When the matter

was taken up on 15.09.2008 for regular hearing, none had appeared for the

petitioners and resultantly, the writ petition was dismissed in default. Vide

order dated 09.03.2010, the petition came to be restored to its original

position upon the petitioners paying costs of `20,000/- to the respondents.

5. The stand of respondent No.2/ASI as taken in its counter

affidavit was that the petitioners did not have any locus standi to file the

present writ petition and they are encroachers/trespassers on the land in

question. It was further averred that the subject land is a vacant land,

which falls within the limit of the historical monument, namely, "Sarai

Shahji", which is a protected monument under the Act and is under the sole

control and ownership of respondent No.2/ASI. The monument has been

described as a unique piece of the Mughal period comprising of a Palace,

Mosque, Graveyards of Farid Murtaza Khan and the ruins situated in the land

adjacent to the land in question. Further, it was averred that despite the

protection notice and other instructions issued by the ASI, the petitioners

had encroached upon a part of the land and sought to grab the same. When

the aforesaid unlawful action of the petitioners was objected to by the

officials of respondent No.2/ASI, they were threatened with dire

consequences. This occasioned the matter to be reported to the local police

on 15.09.1992.

6. In support of its submission that the monument in question has

been notified, respondent No.2/ASI relied upon a Gazette notification dated

12.11.1987 issued by the Government of India and published in the Gazette

of India on 05.12.1987, in which, two months notice of intention to declare

the Monument as protected, was specified. As per the rules, the said

notification had also been affixed at conspicuous/prominent places near the

said monument. The Gazette of India notification was made available to the

public on 07.12.1987. As no objections were received by the respondent

No.2/ASI from any quarter, the monument was notified as a centrally

protected monument in exercise of the powers vested in the Competent

Authority under Section 4 of the Act, and thereafter ownership thereof

vested with the ASI, in terms of the final Gazette Notification dated

21.05.1988.

7. As regards the Jamabandi of the year 1948-49 that had been

relied upon heavily by the petitioners, respondent No.2/ASI stated that the

same is a forged and fabricated document and that the land in question is

Samlath-Deh land as is reflected in the revenue records procured from the

Tehsildar, Mehrauli, and duly verified by the revenue officials. It was averred

in the counter affidavit that the total area of the disputed land is 11 bighas

17 biswas (11850 sq. yards), whereas the petitioners had claimed that the

same measures 1127 sq. mtrs. It was further pointed out that the

Jamabandi furnished by the petitioners showed that there were 32 claimants

to the subject land. It was averred that acting on the complaints of

respondent No.2/ASI, the local police had arrested the petitioners alongwith

some accomplices for trying to demolish the ancient wall of "Sarai Shahji".

Thereafter, an FIR No.470/1992 was registered against them. It is

contended by learned counsel for respondent No.2/ASI that the present

petition is nothing but a counterblast to the aforesaid FIR that had been

lodged by respondent No.2/ASI against the petitioners. Pertinently, the

petitioners have not filed a rejoinder to the aforesaid counter affidavit filed

by respondent No.2/ASI.

8. The main plank of the argument of the counsel for the

petitioners is based on the Jamabandi of the subject land for the year 1948-

49. The record reveals that the revenue records for the period after the

year 1948-49 have not been placed on record by the petitioners so as to

show that thereafter they had been actually enjoying the cultivatory

possession of the subject land all throughout, till the date of filing of the writ

petition. In support of their contention that they had remained in continuous

uninterrupted cultivatory possession of the subject land, the least that the

petitioners were expected to do was to place on record the copies of the

Khasra Girdawaris of the land in question to show their cultivatory

possession from on a year to year basis and if not for the entire period, at

least for a reasonable period prior to the institution of the present petition.

However, no such document has been placed on record by the petitioners.

9. Apart from making a vague averment to the effect that their

ancestors had jointly purchased the land in question, there is no mention in

the petition as to the date on which the land in question came in the

possession of the ancestors of the petitioners and the party from whom they

purchased it. Nor have they filed on record the copies of documents of

purchase of the subject land and the status of the subject land with

reference to the revenue records, from the date of its purported purchase,

till the date of filing the present writ petition. Even after the institution of

the present petition in the year 1992, the petitioners did not choose to place

on record any document to establish that they were and had remained in

continuous lawful possession and occupation of the land in question. Merely

because the petitioners claimed that they were carrying on cultivation on the

land in question, would in itself not be a ground for the Court to injunct the

respondents from interfering in their possession inasmuch as they have

failed to place on record any legal document to establish their purported

ownership in the subject land. Apart from filing a copy of a Jamabandi in

respect of the subject land, relating to the year 1948-49, a perusal of which

shows that there were 32 claimants to it, no other relevant document was

filed by the petitioners.

10. On the other hand, respondent No.2/ASI has placed on record a

set of documents including a copy of the schedule dated 10.07.1986 for the

protection of a group of monuments at Sarai Shahji, wherein, a specific

mention has been made of Khasra No.144/84 measuring 11 Bigha 17 Biswas

alongwith boundaries thereof that collectively go to show that the land falls

within the limit of a protected monument and was duly notified under the

Act. Moreover, in the last column of the aforesaid document, there is a

remark that the land in question is vacant. Pertinently, the petitioners

have not rebutted any of the aforesaid averments made by respondent

No.2/ASI, by filing a rejoinder thereto. This only fortifies the submission

made by learned counsel for respondent No.2/ASI that the present petition

is a counterblast to the FIR lodged by the police against petitioner No.1 and

some other accused, at the instance of the officers of the ASI who had

complained that they were attempting to garb the land abutting the

protected monuments.

11. This Court is therefore inclined to accept the submission made

by the counsel for respondent No.2/ASI that the petitioners, having illegally

occupied the open land, which is a part of the protected monument, had

encroached thereon and tried to demolish the ancient wall surrounding the

centrally protected monument. The aforesaid submission made by learned

counsel for respondent No.2/ASI stands ratified by the police complaint

dated 10.09.1992 lodged by respondent No.2/ASI against petitioner No.1

and some others for trying to demolish a portion of the ancient monument.

The report dated 15.10.1992 submitted by the DCP to the Superintending

Archaeologist also gains significance in the above circumstances. In the said

report it was stated that the matter had been looked into and the

encroachers, who had demolished the ancient wall were arrested in FIR

No.470/1992. It is relevant to note that the names of the said encroachers

include that of petitioner No.1, i.e., Shri Rati Ram.

12. In view of the aforesaid facts and circumstances, it is quite

apparent that the petitioners have miserably failed to establish their lawful

title and ownership in the land in question. Even the cultivatory

possession/occupation of the land in question has not been demonstrated by

the petitioners by placing on record the extracts of the relevant records

maintained by the revenue authorities in respect of the subject land. In

these circumstances, the present writ petition is dismissed as being grossly

misconceived with costs quantified at `20,000/- payable to respondent

No.2/ASI within four weeks. The costs are limited to `20,000/- in view of

the fact that when the writ petition was dismissed in default vide order dated

15.09.2008, the same had been restored on 09.03.2010, upon the

petitioners paying costs of `20,000/- to respondent No.2/ASI.

                                                             (HIMA KOHLI)
FEBRUARY 2, 2012                                                JUDGE
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