Daya Kishan & Ors vs Tehsildar - Najafgarh & Ors
2014 Latest Caselaw 3870 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 W.P.(C) 1693/2008


                                              Decided on : 22.08.2014

IN THE MATTER OF
DAYA KISHAN & ORS                                  ..... Petitioners
                       Through : Mr. Atul Bandhu, Advocate


                       versus


TEHSILDAR - NAJAFGARH & ORS                     ..... Respondents
                    Through : Mr. V.K. Tandon, Advocate.


CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J. (ORAL)

RP No.500/2009 & CM No.10216/2013 (for condonation of delay)

1. A Review Petition has been filed by the respondent/revenue

authorities praying inter alia for review of the order dated 7.1.2009.

Accompanying the said application is an application for condonation of

delay of 278 days.

2. Briefly stated, the facts of the case are that the petitioners had

filed a petition praying inter alia for issuance of directions to the

respondent/revenue authorities to undertake demarcation of the land

situated in Khasra No.656 & 657 in Village Sarangpur, New Delhi, in

accordance with the records available.

3. On 5.3.2008, learned counsel for the petitioners had stated that

he had made several representations for demarcation, but without any

success. On the aforesaid date, notice was issued in the writ petition

and a counter affidavit was directed to be filed by the respondents.

However, the counter affidavit was not filed. On 25.8.2008, learned

counsel for the respondent/revenue authorities had stated that the

counter affidavit was filed two days earlier, but the same was not on

record. Counsel for the petitioner had also submitted that he had not

received a copy of the same. On the assumption that the counter

affidavit would be placed on record, directions were issued to the

petitioners to file a rejoinder and the matter was adjourned to

7.1.2009.

4. On 7.1.2009, counsel for the respondent/revenue authorities

submitted that he had no objection to the prayer made by the

petitioners for undertaking demarcation of Khasra No.656-657 situated

in village Sarangpur, New Delhi, being allowed. In view of the

aforesaid submission made on behalf of the respondent/revenue

authorities, the writ petition was disposed of with directions issued to

the respondent/revenue authorities to carry out demarcation of the

subject Khasra numbers in the presence of the petitioners after giving

written intimation to them of the date fixed for the said purpose.

5. Subsequently, the respondent/revenue authorities filed two

applications, i.e., CM No.16403/2009 for seeking condonation of delay

in filing the review petition and CM No.16404/2009 for seeking

condonation of delay in re-filing CM No.16403/2009. Vide order dated

11.11.2011, CM No.16404/2009 was allowed and the delay in re-filing

CM No.16403/2009 was condoned. As regards CM No.16403/2009,

whereunder the respondent/revenue authorities sought condonation of

delay of 278 days in filing the review application, the same was

adjourned to enable learned counsel for the respondent/revenue

authorities to file a better affidavit in support of the averments made

in the said application.

6. Subsequently, in July, 2013, the respondent/revenue authorities

filed CM No.10216/2013 praying inter alia for condonation of delay in

filing the review petition. On 16.7.2013, notice was issued to the non-

applicants/petitioners on the said application. On 17.1.2014, counsel

for the petitioners had entered appearance and sought time to file a

reply to the application. However, reply was not filed despite the last

opportunity granted to the petitioners, vide order dated 10.3.2014,

passed by the Registrar. On 22.4.2014, as learned counsel for the

petitioners submitted that the averments made by him in CM

No.977/2014 may be treated as a reply to the review application, the

review petition and CM No.10216/2013 have been placed before this

Court for arguments.

7. Mr. Tandon, learned counsel for the respondent/revenue

authorities, states that after the order dated 7.1.2009 was passed,

efforts were made by the department to undertake demarcation of the

subject land, but as the area was completely built-up, objections were

raised by the residents to the demarcation proceedings. In these

circumstances, the respondent/revenue authorities filed the review

petition on 12.11.2009.

8. In the meantime, the Tehsildar, who was dealing with the case,

was suspended on 12.11.2009 and as the facts of the present case

was in his knowledge, the other officers of the department remained

unaware of the status of the case. It is submitted that only after the

petitioners approached the respondent/revenue authorities to remind

them about the order passed on 7.1.2009, was the Tehsildar, who was

suspended in the meantime, contacted and the file traced. In this

duration, the elections of the Lok Sabha were declared and most of the

officers of the revenue department were deputed on election duty,

which caused further delay in filing the condonation of delay

application.

9. Learned counsel for the non-applicants/petitioners fairly states

that he does not wish to oppose CM No.10216/2013 filed for

condonation of delay and instead, requests that the review petition

may be heard and decided on merits.

10. Though, the explanation offered by the respondent/revenue

authorities in CM No.10216/2013, for seeking condonation of delay, is

rather sketchy and devoid of all the material facts, in the interest of

justice, the same is allowed and the delay of 278 days in filing the

review petition is condoned.

11. By way of the present Review Petition, the respondent/revenue

authorities seek review of the order dated 7.1.2009 on the ground that

the petitioners had filed a misconceived petition seeking demarcation

of land situated in Khasra No.656 & 657 in Village Sarangpur, New

Delhi, when it was well within their knowledge that as on date, there

did not exist any such Khasra numbers. Learned counsel for the

respondent/revenue authorities submits that the land situated in

Village Sarangpur, New Delhi is comprised of single Khasra number,

i.e., Khasra No.38 and this fact was well within the knowledge of the

petitioners as is borne from a perusal of the averments made in the

writ petition, particularly para 3 thereof, wherein the petitioners have

categorically stated that the old Khasra numbers of the Village were

merged into one Khasra number at the time of the last settlement that

was carried out in the year 1908-09 and the whole of the abadi deh of

the Village was given one Khasra number, i.e., Khasra No.38.

12. Learned counsel for the respondents/revenue authorities states

that records reveal that initially in the year 1908-09, the abadi deh of

the Village was given one number, i.e., Khasra No.773 and all the

separate Khasra numbers were merged into the said Khasra number.

Again, before the consolidation, the said Khasra number was changed

into Khasra No.179 and in the year 1971-72, the aforesaid Khasra

No.179 was changed into Khasra No.38.

13. It is submitted that a perusal of the revenue records indicates

that prior to merging of the above Khasra numbers into Khasra

No.773, later on into Khasra 179, and finally into Khasra No.38, land

situated in Khasra No.157 was a passage and was Shamlat-deh land

and not the personal property of any of the petitioners. It is thus

stated that the land in question cannot be demarcated as Khasra

No.656 & 657 stand merged in Khasra No.773, then in Khasra No.179

and lastly in Khasra No.38, which is how it stands today. In other

words, the entire abadi deh of Village Sarangpur, New Delhi, is

comprised in present Khasra No.38 and it is virtually impossible for the

respondent/revenue authorities to carry out the demarcation of the

entire Khasra No.38.

14. Counsel for the petitioners submits that despite merging of the

Khasra numbers of the abadi deh into a single Khasra No.38, the

petitioners had remained owners in possession of a plot of land

measuring 250 sq. yards (approx.) in the Village through their

predecessor-in-title, who were residing there ever since the year

1908-09, i.e., prior to the settlement. He submits that in the year

1978, the petitioners had raised a residential house on the subject

land. In the year 1997, the petitioners' paternal uncle filed a suit for

partition against their father, registered as CS(OS)No.1410/1997,

which was finally disposed of and a decree was passed, on the basis of

which, all the parties were allotted separate portions of the residential

plot.

15. Learned counsel for the petitioners states that the petitioners

had filed the present petition seeking demarcation of Khasra No.656 &

657 for the reason that one Mr. Kanahiya, who was holding a parcel of

land across the land occupied by the petitioners, had started to

threaten the petitioners and their predecessors-in-interest with

demolition and had made false complaints that the petitioners were

trying to encroach upon the passage in the Shamlat-deh land

comprising of Khasra No.657. Later on, one Shri Om Prakash had

approached Shri Kanahiya and purchased his land and then he started

to extend threats to the petitioners. As a result, the petitioners decided

to file the present petition seeking demarcation of the common

passage.

16. Counsel for the petitioners states that in the year 2010, Shri Om

Prakash filed a writ petition, registered as WP(C)No.6351/2010 praying

inter alia that MCD be directed to construct a pucca gali with drainage

in place of a kachha rasta as existed in village Sarangpur, New Delhi,

wherein allegations of blocking/encroachment of land were levelled

against the petitioners' father. Vide order dated 23.2.2011, the said

petition was disposed of with an observation that it is for the MCD

along with the revenue authorities to determine the nature and extent

of the rasta. The Court also declined to entertain the application for

impleadment filed by the petitioners herein as respondents in the

aforesaid writ petition and directed the MCD to pave the kachha rasta

as per demarcation.

17. Counsel for the respondent/revenue authorities submits that only

MCD was impleaded in WP(C)No.6351/2010 and the revenue

authorities were not a party to the said proceedings and if the MCD

seeks certain clarifications from the department, then the same shall

be provided but the respondent/revenue authorities do not have any

role to play in carving out rasta as it is within the jurisdiction of the

civic authorities to take steps in that regard.

18. In view of the aforesaid position that has emerged only after the

review petition has been filed by the respondent/revenue authorities, it

is deemed appropriate to recall the order dated 7.1.2009, whereunder

the respondent/revenue authorities were directed to carry out

demarcation of Khasra No.656 & 657 situated in village Sarangpur,

New Delhi for the reason that there do not exist any such Khasra

numbers for the respondent/revenue authorities to undertake any

demarcation proceedings and it is untenable for the petitioners to seek

demarcation of Khasra No.38, which comprises of the entire village

Sarangpur. Had this fact been pointed out by the learned counsel for

the petitioners on 07.01.2009, then such a direction would not have

been issued. As for the kaccha rasta existing on the Shamlat-deh land

in the Village (old Khasra No.657), if the petitioners have any

grievance with regard to encroachment on the said passage, then it is

for them to approach the civic authorities for seeking clearance of the

said encroachment, in accordance with law.

19. The review petition is allowed and disposed of.

(HIMA KOHLI) JUDGE AUGUST 22, 2014 sk