Pitam Jankalyan Samiti vs Govt. Of Nct Of Delhi And Ors
2013 Latest Caselaw 1639 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      W.P.(C) 5329/2012
       PITAM JANKALYAN SAMITI                  ..... Petitioner
                    Through: Mr Deb Nandan, Adv.

                    Versus

       GOVT. OF NCT OF DELHI AND ORS             ..... Respondents
                     Through: Mr Rajiv Nanda and Ms Shawna, Advs. for
                     Respondents 1,2 and 4

       CORAM:
       HON'BLE THE CHIEF JUSTICE
       HON'BLE MR. JUSTICE V.K. JAIN
                          ORDER

% 10.04.2013

This petition in public interest has been filed by Pitam Jankalyan Samiti,

alleging construction of boundary wall on public land comprising Khasra No.

103/23-24 of Village Karala. It is alleged in the petition that respondent No. 3,

who was earlier posted as SDM in connivance with the land grabbers, allowed

construction of boundary wall upon public land by one Dr. Krishna Kumari

Thakran. When a complaint of illegal construction of public land and its grabbing

was made, respondent No. 3 cancelled the permission granted by him. The

petitioner has, therefore, sought a direction to the respondents to remove

encroachment on the aforesaid public land.

2. In its reply, respondent No. 4, who is the SHO of the concerned area,

has stated as under:-

"......It is submitted that Smt. Sheela Devi had given a complaint to the police wherein she alleged that her land of Khasra No.103/23/2, Rajiv Nagar, Phase-II, Delhi is lying for many years. The measurement of this land is 2 bigha 5 biswa i.e. about 2520 sq. yards and out of this land about 1260 sq. yards belongs to her jeth Rajinder Singh and was sold to the same by her father-in-law. Dealer Arun Thakran and Ram Kala started to claim the owner of her land themselves when she went to clean her land and she was threatened. Lateron, on the basis of the complaint ASI Ram Kishore was deputed to conduct the inquiry and after inquiry, it was found that Sh.Hoshiyar Singh S/o Sh. Sher Singh R/o Village & P.O. Karala, Delhi was the landlord of Khasra no.103/23/2, Rajiv Nagar, Phase-II, Delhi and he was the father-in-law of complainant Sheela. Sh. Hoshiyar Singh had sold the land i.e. Plot No.C-8 to C-12 measuring area 880 sq. yards, Khasra No.103/18/1, 17, Plot No.C-13 to C-16 measuring area 400 sq. yards, Khasra No.103/23/2, 24, Plot No.C-17-A to C-20, measuring area 800 sq. yards, Khasra No.103/23/2, situated at Village Karala, Delhi to one Sh. Kishan Chand S/o Tokh Ram R/o 313, V.P.O. Deoli on 27.3.1989, who in turn sold the plot no.C-8 to C-12, area measuring 180 sq. yards of Khasra No.103/18/1, 17, Plot No.C-13 to C-16, area 400 sq. yards, Khasra No.103/23/2, 24 and Plot No.C-17-A to C- 20, area 800 sq. yards Khasra No.103/23/2/24 located at Village Karala, Delhi to Sh. Virender Singh Thakran S/o Hoshiyar Singh through registered General Power of Attorney, but the name of the owner was not entered by way of mutation in the revenue records. The complainant is wrongly claiming herself to be the owner of the land whereas her father-in-law had already sold the said land and Dr.Krishna Kumar Thakran wife of

Sh.Virender Singh Thakran obtained the permission for erecting boundary wall over the said land and after getting the permission she erected boundary wall over the said land and after getting the permission she erected boundary wall over the property. As the father-in-law of the complainant has already sold the property and the alleged land was finally purchased by Virender Singh Thakran and he is in possession since 1.9.2002 and the claim of the claimant Sheela Devi is false. Hence the complainant of Sheela Devi has been filed. It is further submitted that police has taken action and conducted inquiry on the complaint of Smt. Sheela Devi."

3. In their reply, respondents No. 1 and 2 have stated as under:

"The permission was granted by the STF team in the meeting held in this regard on 19/07/2011 on the basis of application of Smt. Krishna Kumari for repairing/raising the already existing boundary wall. Copy of Application made by Smt.Krishna Kumari is enclosed as Annexure A. Subsequently, the applicant (Smt. Krishna Kumari) had submitted registered GPA document as proof of ownership. It is important here that the land in question fall in the Unauthorised Colony Rajeev Nagar, Ph. II (Provisional Registration No.961) and Sher Singh Enclave (Provisional Registration No.923) and the same is Governed and protected by Govt. of NCT OF Delhi Laws (Special Provision) Second Act 2011, for taking any legal action. It is also submitted that as per the order dated 12/12/2007 of Hon'ble LG., (ANNEXURE B), All acquired land on which possession has not been taken by the government and compensation has not been received by the land owners will be treated as private land in r/o these unauthorized colonies and All lands vested in Gram Sabha u/s 81 of DLR Act will be treated as private land

unless possession has not been taken by the government. It is further submitted that STF was constituted vide Lt. Governor order dated 30/03/2011, under the chairmanship of area SDM and STF was also assigned task to deal with the permission of repair and maintenances of buildings/structures already existed. Accordingly when Smt. Krishna Kumari made application for raising/repairing of boundary wall, the same was taken in the meeting dated 19/07/2011 and permission for the same was granted by STF. (ANNEXURE C) However, as soon as information regarding dispute of subject land was received in the office, the Permission was cancelled immediately vide order dated 19/08/2011, hence allegations made by Petitioner is baseless and afterthoughts and denied. ..... Although it is admitted that Kh. No.103/23/2 is acquired but neither possession of the land was taken nor any compensation was released for the same to any person by LAC. As regards, Kh. No.103/24, earlier was a private land, vested u/s 81 of DLR Act 1954, whose possession was not taken over by Gram Sabha, As this Khasra no. also falls in unauthorized colony under regularization as per PRC0961. As per details submitted by RWA to Urban Development Deptt. (copy of same is also available on UD website) as per available record, it is submitted that Possession of said land is not taken by Gaon Sabha. As per order dated 12/12/2007 of Hon'ble LG Delhi, in r/o Govt. and Private land for unauthorized colonies under regularization, the land which has been vested u/s 81 of DLR Act, 1954 & no possession is taken over by Gaon Sabha, will be considered as private land" & the land in question is vested u/s 81 of DLR Act, 1954 & no possession is taken over by the Gaon Sabha."

4. It would thus be seen from the reply filed by respondents 1 and 2 that land in

question was acquired by the Government though its possession was not taken and

compensation has not been taken by the land owners. The Administrative Order

dated 12.12.2007 referred to in the reply of respondents 1 and 2 to the extent it is

relevant reads as under:-

"In accordance with Para 2.2 of the revised Guidelines- 2007 for Regularization of Unauthorized Colonies in Delhi as received from the Ministry of Urban Development, Government of India under letter No.0- 33011/2/94-DDIIB-Vol.-XI dated 5th October, 2007, the Lieutenant Governor of the NCT of Delhi, is pleased to define the government/Public land and/or private land as follows:-

1. Land under acquisition proceedings

Government Land: All lands in respect of which the Awards have been given, and the landowners have received the compensation, irrespective of current physical possession.

Private land: All lands in respect of which the Awards have been given but the landowners have not taken the compensation and are retaining the physical possession.

2. Gaon Sabha land

Government land: All lands originally vested in the Gaon Sabha at the commencement of the Delhi Land Reforms Act, 1954, irrespective of the physical possession on ground and all lands subsequently vested in the Gaon Sabha under Section 81 of the aforesaid Act, where the physical

possession is with the Government.

Private Land: All lands vested in the Gaon Sabha under Section 81 of the Delhi Land Reforms Act, 1954 where the physical possession is with the original landowners"

5. The order dated 12.12.2007 passed by Lieutenant Governor of Delhi does

not indicate as to in exercise of which powers such an order was passed. Nothing

in law prevents the Government from taking possession of the land which has been

duly acquired by it under the provisions of Land Acquisition Act, 1894. In fact,

Section 16 of the said Act specifically empowers the Collector to take possession

of the land which thereupon would vest absolutely in the Government, free from

all encumbrances. If the Government is of the view that any land acquired by it is

no more required for the purpose for which it was acquired, nothing prevents the

Government from withdrawing from the acquisition in terms of Section 48 of the

Land Acquisition Act.

6. Section 81 of Delhi Reforms Act provides that a Bhumidhar or an Asami

shall be liable to be ejected on the suit of the Gaon Sabha or the land owner, as the

case may be, for using any land for any purpose other than a purpose connected

with agriculture, horticulture or animal husbandry. The

Revenue Assistant can also eject such a Bhumidhar or an Asami on receipt of

information in this regard or on his own motion. Neither the statutory right of

Gaon Sabha to eject a Bhumidhar or an Asami using land for any purpose other

than a purpose connected with agriculture, horticulture or animal husbandry, by

filing a suit in this regard, nor the right of the Revenue Assistant to eject such a

Bhumidhar or an Asami, can be taken away by way of an Administrative order

such as an order dated 12.12.2007.

7. The case of the respondents is that on an application filed by Smt. Krishna

Kumari Thakran, alleging removal of some parts of the boundary wall, she was

allowed to raise the said boundary wall. We have perused the photographs of land

in question filed with the petition. It appears to us from a perusal of these

photographs that it was not a case of repair of boundary wall or reconstructing

certain removed parts of the boundary wall. It appears to us that an altogether new

boundary wall has been constructed pursuant to the permission granted by the

concerned SDM. No fresh boundary wall in the garb of repair of an existing

boundary wall or reconstructing certain removed portions of an existing boundary

wall could have been constructed pursuant to the permission granted by the SDM.

For the reasons stated hereinabove, we dispose of this petition with a

direction to the respondents to take due action in accordance with law for removal

of the new boundary wall, if any constructed on the strength of the permission

granted by the concerned SDM. We, however, make it clear that due opportunity

of hearing to the concerned person would be given by the respondents before

taking action in terms of this petition.

CHIEF JUSTICE

V.K. JAIN, J APRIL 10, 2013 BG