Delhi High Court
Ali Zakariya vs Dda on 8 May, 2013
Author: V. K. Jain
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 08.05.2013
+ W.P.(C) 7001/2010
ALI ZAKARIYA ..... Petitioner
Through: Mr Sumit Bansal and Ms Sumi Anand and
Mr Devmani Bansal, Advs.
versus
DDA ..... Respondent
Through: Ms Shobhana Takair, Adv for DDA
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN
JUDGMENT
V.K.JAIN, J. (ORAL)
1. The case of the petitioner is that he is the owner in possession of property
bearing No.168/1, measuring 80 square yards in Village Begumpur, abadi Hauz
Rani Village, Delhi-110007, forming part of Khasra No. 349/272, measuring 1
bigha and 10 biswas of Village Begumpur, Delhi. Initially, the land comprised in
Khasra No. 349/272 was owned by Hamid Khan, S/o Dalshera and Mal Khan, S/o
Imam Khan and the position was so reflected in Jamabandi for the year 1948-49.
The names of the cultivator were shown as Hamid Khan Azam Khan and Samadal
Khan, sons of Mehmood Khan. The aforesaid land has been described as non-
cultivable house in the said jamabandi. The said land was acquired by the Court for
displaced persons vide offer No. 1000-A, being unutilized land and was placed at
the disposal of DDA vide notification No. F-9(22)78/L&B dated 22.02.1979. The
learned counsel for the respondent referring to Offer No. 1000-A submits that
declaration under Section 3 of the Settlement of Displaced Persons Acquisition
Act, 1948 was made by Chief Commissioner, Delhi vide notification dated
13.09.1948, the possession of some part of the land was taken on 04.07.1959 while
the possession of the remaining part was taken on 27.09.1949. Khasra No.349/272,
measuring 1 bigha and 10 biswas was part of Offer No. 1000-A.
2. In the later revenue records filed by the petitioner, the ownership of the
Government has been recorded in respect of the land comprised in Khasra
No.349/272. It is an admitted position before me that the ownership of the land in
question comprised in Khasra No.349/272 vested in the Government and later on,
the aforesaid land was placed by the Government at the disposal of DDA.
3. The case of the petitioner is that he has been in possession of property in
question for last more than 20 years. Reliance in this regard has been placed by the
petitioner on the record of MCD showing assessment of Property No. 168/1, Hauz
Rani for the purposed of property tax. Electricity and water connections have also
been obtained by the petitioner at the aforesaid address. A licence for running an
oil depot was also issued to the petitioner on 04.04.1992 at the address 168/1, Hauz
Rani, Malviya Nagar.
4. The learned counsel for the respondent states that though the petitioner may
have in possession of some built up property in village Hauz Rani, he had
encroached upon land which was lying vacant in the said village and was made for
being used as a park and that the said encroachment and construction is a recent
one, not protected by National Capital Territory of Delhi Laws (Special Provisions)
Act, 2011.
5. The petitioner has not placed on record notices received from MCD under
Section 124/126 of DMC Act when the property occupied by him in the village
Hauz Rani was assessed to property tax. Had such notices been filed, they could
possibly have given extent of the land and construction which was assessed to
property tax by MCD. This is also not the case of the petitioner that land in
question is the only property occupied by him in Khasra No. 349/272 of Village
Begumpur. The petitioner, who is present in the Court, states that their family
occupies the whole of the land comprised in Khasra No. 349/272 of village
Begumpur. This, however, is refuted by the learned counsel for the respondent
who states that the land in respect of which they are seeking to take action for
demolition and removal of encroachment was encroached and built up only
recently.
6. In a writ petition, it is not possible for the Court to go into disputed questions
of fact which may require recording and appreciation of the evidence. The Court is
not in a position to ascertain as to what was the extent of the land which was
assessed by MCD to property tax and which was comprised in Khasra No. 349/272
of village Begumpur. The Court is not in a position to verify as to whether the land
in question was encroached upon and built up by the petitioner prior to or on or
after 08.02.2007. If it has been encroached and/or built after 08.02.2007, it does not
enjoy statutory protection under National Capital Territory of Delhi Laws (Special
Provisions) Act, 2011. In these circumstances, the appropriate course of action
would be to remit the matter back to DDA to hear the petitioner, consider such
documents as he may choose to produce in support of his case and then pass a
speaking order, identifying the land, if any, encroached or constructed by the
petitioner on or after 08.02007. Accordingly, the petitioner is directed to submit a
reply to Director (Land Management) of DDA within a period of two weeks from
today, placing his case before him along with such documents as he may like to
produce in support of his case. He shall also appear for the purpose of hearing by
the said Director at 3.00 PM on 27.05.2013 in his office at Vikas Sadan, New
Delhi. Director (Land Management) shall pass an appropriate order in the matter
within two weeks from hearing the petitioner. It is made clear that no further
opportunity of hearing shall be granted by Director (Land Management) to the
petitioner.
7. DDA shall be entitled to take such action as is available to it in law in
respect of the land found to have been encroached and/or constructed on or after
08.02.2007. It shall also be open to the petitioner to assail the order of the
Director (Land Management) in case he is aggrieved from such an order, by
availing such remedies as are open to him in law in this regard.
The writ petition stands disposed of. No order as to costs.
V.K. JAIN, J
MAY 08, 2013
BG
