Krishna Estate Resident Welfare ... vs Dda And Ors.
2012 Latest Caselaw 1533 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+        W.P.(C) 3444/2010 and CMs 6892/2010, 7230/2011

                                            Decided on: 05.03.2012
IN THE MATTER OF
KRISHNA ESTATE RESIDENT WELFARE ASSOCIATION AND ORS.
                                                    ..... Petitioners
                   Through: Mr. Ved Prakash Sharma, Advocate with
                   Ms. Amrit Kaur and Ms. Kanika Sabharwal, Advs.

                     versus

DDA AND ORS.                                               ..... Respondents
                           Through: Mr. Ajay Verma, Advocate for R-1/DDA.
                           Mr. Rajeev Sharma, Advocate for R-2/GNCTD.
                           Mr. Rajan Sabharwal, Advocate for R-4/UOI.
                           Mr. K.R. Chawla, Advocate for the applicant in CM
                           7230/2011.

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J. (ORAL)

1. This petition is filed by petitioner No.1/Krishna Estate

Resident Welfare Association and nine others praying inter alia for setting

aside the proposed demolition action being undertaken by the

respondents in respect of residential premises of petitioners No.2 to 10

existing in Khasra No.509, G-Block, Punjabi Colony, Narela, Delhi, known

as Krishna Estate, G-Block, Punjabi Colony, Narela Delhi.

2. It is contended by learned counsel for the petitioners that the

aforesaid demolition action has been undertaken by respondent No.1/DDA

in violation of the National Capital Territory of Delhi Laws (Special

Provisions) Act and the policy framed by the Govt. of NCT of Delhi,

applicable to the unauthorized colonies like that of the petitioners', which

is awaiting regularization. He states that the petitioner No.1/Association

had applied to the respondent No.2/Govt. of NCT of Delhi for

regularization of its colony and its name figures at Sr. No.1391 in the list

of applicants for regularization of unauthorized colonies as drawn by

respondent No.2/Govt. of NCT of Delhi. The registration number assigned

to petitioner No.1/Association is 1574. It is averred in para 8 of the writ

petition that on 12.08.2008, petitioner No.1/Association had received a

letter from the Govt. of NCT of Delhi, calling upon it to submit documents

and rectify the deficiencies in the application submitted by it for grant of a

provisional registration certificate. A copy of the aforesaid letter dated

12.08.2008 addressed by the Govt. of NCT of Delhi to the petitioner

No.1/Association is enclosed as Annexure P-6.

3. Immediately after the aforesaid averment made in para 8 of

the writ petition, in para 9 it is stated that petitioner No.1/Association

received a letter dated 15.09.2008 from the MCD, calling upon it to

remove the discrepancies in respect of its application for regularization. A

copy of the aforesaid letter dated 15.09.2008 addressed by the MCD to

petitioner No.1/Association is enclosed as Annexure P-7. In para 2 of the

aforesaid letter, the MCD had mentioned attaching a copy of the

discrepancies noticed in respect of the petitioner No.1/Association's

colony. However, the said enclosure has not been attached to Annexure

P-7. Petitioner No.1/Association claimed that it had removed all the

discrepancies as pointed out and submitted a complete set of papers to

the MCD on 15.03.2010, after a period of two years.

4. It is contended by learned counsel for the petitioners that at

the time of submitting the layout plan of the colony to the MCD under

cover of letter dated 15.03.2010, petitioner No.1/Association had added

Khasra No.509, subject matter of the present petition, to the said layout

plan but thereafter, MCD did not intimate anything to petitioner

No.1/Association in this regard. As a result, petitioner No.1/Association

remained under the bonafide impression that the aforesaid Khasra No.509

had been included in the layout plan of its colony pending regularization.

It is submitted that the petitioners were compelled to file the present writ

petition in May 2010, for the reason that on 19.03.2010, the respondents

had suddenly undertaken certain demolition action and thus dispossessed

petitioners No.2 to 10 from their residential premises that fell in the

aforesaid Khasra No.509.

5. When the present petition came up for admission on

19.05.2010, in view of the submission made by the counsel for the

petitioners that the colony in question had been included in the list of

unauthorized colonies, and it was under consideration for regularization,

a provisional certificate having been issued to it, an interim protection

was granted to petitioners No.2 to 10 by directing that till the next date of

hearing, no demolition action would be undertaken in the aforesaid

Khasra, in case construction had been carried out there on or before

07.02.2007 and it was clarified that the same was subject to any orders

that may have been passed by the Division Bench pertaining to the land

in question.

6. A counter affidavit was filed by respondent No.1/DDA on

13.09.2010, wherein it stated that the petitioners are not the owners of

the land in question measuring 15 bighas 8 biswas situated in village

Mamurpur and they did not have any right, title or interest in the land

inasmuch as the same was acquired vide Award No.202/86-87 for the

purpose of planned development of Delhi. It is further stated that the

land in question had been handed over by the Land & Building

Department, Govt. of NCT of Delhi to the respondent No.1/DDA on

23.09.1986 and the same was placed at the disposal of respondent

No.1/DDA on 07.11.1986. It is asserted by respondent No.1/DDA that

the parcel of land in question is not covered by the National Capital

Territory of Delhi Laws (Special Provisions) Act as it is not a part of the

unauthorized colony known as Krishna Estate.

7. Learned counsel for respondent No.1/DDA submits that as per

the layout plan provided by the Govt. of NCT of Delhi to the DDA

alongwith the list of Khasra Nos., the land of Khasra No.509 does not

form a part of the said list. He points out that out of the land measuring

15 bigha 8 biswa comprising in Khasra No.509, land measuring 11 bigha

had been got vacated by respondent No.1/DDA on 19.03.2010 and the

built up structures were removed from the said land and only a few

structures falling in an area measuring 4 bighas 8 biswas could not be

removed on the said date due to paucity of time. Thereafter, the interim

order dated 19.05.2010 came to be passed in the present proceedings

due to which DDA stayed its hands. Mr. Ajay Verma draws the attention

of the Court to the document enclosed with the counter affidavit, which is

a copy of the land status report in respect of the colony in question that

had been prepared by the Revenue Department of respondent No.2/Govt.

of NCT of Delhi on 06.07.2009 to submit that Khasra No.509 does not

form a part of the layout plan of the aforesaid colony. He further states

that the petitioners have deliberately not placed on record the enclosure

to the letter dated 15.09.2008 addressed by the MCD to petitioner

No.1/Association, which would have clearly shown the discrepancies that

had been pointed out by MCD in respect of the colony in question. As

regards the rectified layout plan submitted by petitioner No.1/Association

to the MCD, he submits that the same would in any case not make any

difference for the reason that even as per the Govt. of NCT of Delhi,

Khasra No.509 had not been shown by the Revenue Department in the

land status report as a part of the unauthorized colony.

8. The aforesaid submission made by learned counsel for

respondent No.1/DDA is affirmed by the counsel for respondent

No.2/Govt. of NCT of Delhi, who submits that the said exercise of

preparing a land status report had been undertaken by the Govt. of NCT

of Delhi to determine the boundary of the colony and the layout plan of

the unauthorized colony, as received from the applicant, had been

forwarded to the Deputy Commissioner, Revenue Department, Govt. of

NCT of Delhi, for preparation of a land status report as well as indicate the

Khasra Nos. in the layout plan. He states that the Revenue Department

had informed the Unauthorized Colony Cell in the Department of Urban

Development, Govt. of NCT of Delhi that the khasra No. in question had

not been shown by it as a part of the colony either in the land status

report or in the layout plan.

9. The aforesaid affidavit filed by respondent No.1/DDA makes it

crystal clear that Khasra No.509, subject matter of the present petition,

was never a part of the layout plan as originally submitted by the

petitioner No.1/Association at the time it submitted an application for

regularization of the colony to the Govt. of NCT of Delhi. Pertinently, the

aforesaid fact has been deliberately skirted by the petitioners while filing

the present petition, which is apparent from a perusal of paras 7 to 9 of

the writ petition. Further, simply because the Govt. of NCT of Delhi had

requested MCD to verify the layout plan submitted by the petitioner

No.1/Association, for processing its application for regularization would

not be of any assistance to the petitioners herein, when as per the land

status report pertaining to the unauthorized colony in question as

prepared by the Revenue Department of the Govt. of NCT of Delhi, Khasra

No.509 had never been shown as a part of the colony proposed to be

regularized.

10. Moreover, the petitioners have not been able to connect the

letter dated 15.03.2010 addressed by petitioner No.1/Association to the

Chief Town Planner, MCD to the discrepancies pointed out by the MCD in

its letter dated 15.09.2008 addressed to it in respect of the layout plan

and the documents submitted by it to the Govt. of NCT of Delhi, for

regularization of unauthorized colony. For the said purpose, the enclosure

to the letter dated 15.09.2008 sent by MCD was of material consideration

and the petitioners having failed to place the same on record, it can only

be assumed that they did not want this Court to verify as to whether the

reply dated 15.03.2010 furnished by petitioner No.1/Association to the

MCD was in consonance with the discrepancies as pointed out by the said

authority. It is also pertinent to note that after perusing the stand taken

by respondent No.1/DDA in its counter affidavit filed on 13.09.2010 and

the averments of respondent No.2/Govt. of NCT of Delhi in its affidavit

filed on 10.08.2011, the petitioners had all the time to implead MCD as a

necessary and proper party in the present proceedings by relying on the

correspondence exchanged between petitioner No.1/Association and the

MCD with regard to the exact status of the layout plan of the colony in

question. Despite the categorical stand taken by the aforesaid

respondents that Khasra No.509 was never shown as part of the layout

plan of Krishna Estate, the petitioners have failed to implead MCD as a

co-respondent in the present proceedings. As a result, an adverse

inference would have to be drawn against the petitioners.

11. In view of the aforesaid facts and circumstances, this Court is

of the opinion that the petitioners have not been able to place on record

documents to substantiate their claim that Khasra No.509 is a part of the

layout plan of Krishna Estate. As a result, the relief sought by the

petitioners in the present petition is declined. However, while dismissing

the present petition, it is clarified that if it is permissible for the petitioner

No.1/Association to approach the Govt. of NCT of Delhi at this stage to

seek inclusion of Khasra No.509 as a part of Krishna Estate, it shall be at

liberty to do so. If such an application is received by the Govt. of NCT of

Delhi, the same shall be considered and decided in accordance with law.

                                                            (HIMA KOHLI)
MARCH     05, 2012                                             JUDGE
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