Rajpal And Ors. vs D.D.A.
2013 Latest Caselaw 1963 Del

       *       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of Decision: 30.04.2013

+      W.P.(C) 3448/2003

       RAJPAL AND ORS.                               ..... Petitioners
                    Through: Mr Vikram Nandrajog, Adv.

                         versus

       D.D.A.                                                   ..... Respondent
                         Through: Mr Ajay Verma, Adv
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                         JUDGMENT

V.K.JAIN, J. (ORAL)

1. The petitioners before this Court claim to be owner of property No.RZ-19 in

village Nangloi Syed, Delhi and also allege that the aforesaid property is comprised

in Khasra No. 94 of the said village. According to the petitioners, the officials of

the respondent visited their property and tried to demolish the same, without

following the due process of law. The petitioners are accordingly seeking a writ of

Mandamus or any other writ or a direction to the respondents not to dispossess

them or demolish their property bearing No. RZ-19 in village Nangloi Syed, Delhi.

2. The writ petition has been contested by the respondent-DDA. In its counter-

affidavit, DDA has alleged that approximately 200 square yards of land of the

disputed property falls in Khasra No. 95/2 min of village Nangloi Syed, Delhi as

per the demarcation carried on 09.01.2033 by the staff of DDA and Government of

N.C.T. of Delhi, whereas rest of the land falls in Khasra No. 94 of the aforesaid

village. This is also the case of the respondent that Khasra No. 95/2 (1 bigha 13

biswas) stand acquired vide Award No. 2202 and physical possession of the

acquired land was handed over to DDA by the Land Acquisition Collector on

12.03.1969 by placing the aforesaid land at the disposal of DDA under Section

22(i) of Delhi Development Act. It is, however, an admitted position that Khasra

No. 94 has not been acquired.

3. In their rejoinder, the petitioners have denied the case of the respondent that

part of the aforesaid property falls in Khasra No. 95/2 and they have reiterated that

the property falls only in Khasra No. 94 of village Nangloi Syed, Delhi. This is,

however, not the case of the petitioners in the rejoinder that even Khasra No. 95/2

has not been acquired.

4. The question as to whether the whole of the suit property falls in Khasra No.

94 of village Nangloi Syed, Delhi, as claimed by the petitioners, or only part of it

falls in the aforesaid Khasra and a portion measuring 200 square yards falls in

Khasra No. 95/2, as is claimed by the respondent, is a question of fact which

cannot be decided in this writ petition since it requires recording of evidence.

5. The learned counsel for the respondent has placed on record a copy of the

Demarcation Report dated 09.01.2003 along with copy of the award, the

proceedings relating to taking over possession of the aforesaid land and handing

over same to DDA. A copy of the notification under Section 22 of Delhi

Development Act is also annexed to the aforesaid Demarcation Report. Copy has

been supplied to the learned counsel for the petitioners. Though the Demarcation

Report filed by the respondents has been taken on record, the Court is not in a

position to decide in this writ petition, as to whether the whole of the property

subject matter of this petition falls in Khasra No. 94 or part of it falls in Khasra No.

95/2 of Village Nangloi Syed, Delhi. This is an issue which can be decided only

before a Civil Court where evidence can be taken in this regard. Suffice it would

be to say that if the land measuring 200 square yards of the suit property falls in

Khasra No. 95/2 and the aforesaid Khasra stands acquired, said piece of the land in

terms of Section 16 of Land Acquisition Act vests in the Government, free from all

encumbrances since possession has already been taken pursuant to the award,

whereby the aforesaid land was acquired. If that is so, the petitioner would have no

legal right to continue to occupy the aforesaid piece of land measuring 200 square

yards.

6. The learned counsel for the petitioner states that in view of the provisions of

the National Capital Territory of Delhi Laws (Special Provisions) Second Act,

2011, the construction which was raised by the petitioners much before filing of

this writ petition in the year 2003 cannot be demolished by the respondents, even if

the case set up by the respondent is taken to be correct. This aspect of the matter,

however, need not be gone into in this writ petition since, in my view, if there is a

legislative mandate, prohibiting the respondent from demolishing construction in

question, no order needs to be passed, asking the respondent to act in terms of the

said legislative mandate. Mr Vohra, however, states that on account of the interim

order granted by this Court, the respondent could not take action for demolition of

the aforesaid construction and consequently, the benefit of the aforesaid legislation

would not be available to the petitioners. However, these are not the questions

which can be gone into in this writ petition. What is relevant for deciding the writ

petition is that the disputed question of fact as to whether part of the suit property

in Khasra No. 95/2 or 94 cannot be gone into in this writ petition.

For the reasons stated above, the writ petition is dismissed.

The interim order stands vacated.

V.K. JAIN, J

APRIL 30, 2013 BG