Balkishan Thapar vs Dharmendra, Principal ...
2014 Latest Caselaw 5964 Del

*                  HIGH COURT OF DELHI AT NEW DELHI

+                Cont. Cas (C) No.677/2013 & C.M. No.15162/2014

                                       Decided on : 19th November, 2014

BALKISHAN THAPAR                                       ...... Petitioner
             Through:                Mr. R.P. Luthra, Advocate.

                            Versus

DHARMENDRA, PRINCIPAL SECRETARY, GOVT. OF NCT OF
DELHI & ORS.                            ...... Respondents
             Through: Mr. Yeeshu Jain, SC for R-1 to 3 & 5.
                      Ms. Zubeda Begum, SC with Ms. Sana
                      Ansari, Advocate for R-4.

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J.

1. This is a contempt petition filed by the petitioner against the

respondents on account of the alleged wilful disobedience of the order

dated 27.7.2012 passed in Cont. Cas (C) No.120/2012. A direction has

also been sought in the contempt petition for allotment of an alternative

plot in lieu of the acquired plot of land.

2. I have heard Mr. R.P. Luthra, the learned counsel for the petitioner.

So far as the prayer of allotment of an alternative plot in contempt

proceedings is concerned, that prayer cannot be allowed. It has to be by

way of an independent writ petition. The only thing to be considered by

this court is as to whether there has been any disobedience in complying

with the directions passed by the court and if so, whether it is wilful. It

may also be pertinent here to mention that the petitioner has been

repeatedly filing the writ petitions/contempt petitions only with a view to

get an alternative plot.

3. Before dealing with the submission made by Mr. Luthra, it may be

pertinent here to mention that on 13.1.1959, a notification was issued

under Section 4 of the Land Acquisition Act for Revenue Estate of

Village Gharaonda Neem Ka Bangar, Patparganj, Shahadra, Delhi, in

which plot No.24-A, Janata Garden Colony, Khasra No.252-253

measuring 1500 square yards allegedly belonging to one Vasudev Thapar,

father of the petitioner, was also included. The land was acquired on

4.3.1972 and Vasudev Thapar had received a compensation of

Rs.6933.33 in the year 1989. On 17.11.1989, Vasudev Thapar applied

for an alternative residential plot in terms of the policy of the Government

of NCT of Delhi. No action was alleged to have been taken by the Land

& Building Department of Govt. of NCT of Delhi.

4. On 7.1.1998, before the death of Vasudev Thapar, a will allegedly

dated 7.2.1978, was made in favour of the petitioner. The petitioner filed

a writ petition bearing No.789/2006 titled Balkishan Thapar vs. GNCTD,

which was disposed of vide order dated 16.4.2007. The court had

directed the respondents to process the application for allotment of an

alternative plot within a period of eight weeks on filing of the affidavit by

the petitioner.

5. The Land & Building Department vide its order dated 10.7.2007

rejected the application of the petitioner on the ground that the father of

the present petitioner, Balkishan, was not the recorded owner of the land

after issue of notification dated 13.1.1959. Still not being satisfied by this

action, the petitioner filed another writ petition bearing No.148/2008 for

setting aside the order dated 10.10.2007 which disposed of the

representation of the petitioner for allotment of an alternative plot. This

writ petition was also decided vide order dated 25.8.2010 directing the

respondents to examine the genuineness of the application of the

petitioner, copy of which was allegedly attached at page No.82 of the

paper book. The genuineness with regard to the mutation of the names of

legal heirs of Vasudev Thapar on 3.8.1958 was to be considered. The

entire process was to be completed within a period of three weeks.

6. The petitioner filed a contempt petition bearing No.120/2012

alleging that the order dated 25.08.2010 was not complied with. The said

contempt petition was disposed of vide order dated 27.7.2012 with the

following observations :-

"That the Dy.Secy (Alt.) Land & Building vide letter dated 06.09.2012 addressed to SDM (Preet Vihar) has informed as under:

"... The case of Sh.Bal Krishan Thapar was placed before the recommendation committee in its meeting held on 27.08.2012 for consideration of allotment of alternative plot. As per record, the land of Sh.Vasudev, father of Sh.Bal Krishan Thapar measuring 1500 square yards situated at Janata Garden Colony No.24A falling in Khasra No.252-256 within the revenue state of Gaoranda, Neem Ka Banger, Patparganj, Ilaqua Shahadra, was acquired by the Government vide Award No.6-A/71, 72 dated 04.03.1972.

The committee while considering the case observed that there was no mention about the mutation of the acquired land in the name of Sh.Vasudev Thapar in the revenue record made available to this office. The LAC report enclosed in the file reveals that the applicant is not recorded owner of the acquired Khasra Nos.255, min & 253 min. The Gaon Sabha has been shown as the recorded owner in LAC report whereas photocopy of revenue record and its translated copy deposited in this office show that

Khasra Nos. of the land were mutated in the name of Sh. Vasudev S/o Sh.Amar Nath Thapar on 23/4/1960."

7. The case of the petitioner was again processed and considered and

since the name of the petitioner or the legal heirs of Vasudev Thapar was

not brought on record and it was shown to be the property belonging to

the Gaon Sabha, therefore, no allotment could be made. Necessary

documents have been filed along with the reply affidavit by the

Government of NCT of Delhi. Similarly, so far as the Land & Building

Department is concerned, it has also observed that there is no

disobedience much less it could be said to be wilful on account of the

non-allotment of an alternative plot to the petitioner because of the fact

that Vasudev Thapar was not the recorded owner. Thus, this is treated to

be sufficient compliance with the directions passed by the court.

8. Mr. Luthra has contended that the direction of the court was to

examine the genuineness of the document, a copy of which is placed at

page 82, and then decide the representation of the petitioner. It has been

stated by him that no effort has been made by the respondents to examine

the genuineness of the said application for substitution of the legal heirs

of Vasudev Thapar and, therefore, they are guilty of wilfully disobeying

the orders of the court. It has also been contended by Mr. Luthra

vehemently that the respondents are compelling the petitioner to

repeatedly come to court by way of a writ petition or by filing contempt

petition in order to get his grievance redressed for allotment of an

alternative plot. It is also contended by him that substantial chunk of land

belonging to Vasudev Thapar measuring around 1500 square yards was

acquired and despite having taken so much of land from the petitioner,

the respondents have failed to allot an alternative plot to the petitioner

and thus, causing him serious prejudice.

9. I have carefully considered the submissions made by the learned

counsel for the petitioner. As has already been observed that so far as the

allotment of an alternative plot is concerned, that cannot be done by this

court in a contempt jurisdiction. The petitioner will have to file an

independent writ petition if he so desires that he has been unjustly

deprived of an alternative allotment. But his court is to only consider as

to whether there has been any wilful disobedience of the order. The court

on two different dates had directed that the case of the petitioner with

regard to genuineness of the application of the grandfather of the

petitioner and the father of the petitioner deserves to be verified and

thereafter, a decision be taken. The contention of the learned counsel for

the petitioner that this genuineness has not been examined and thus, they

are guilty of wilful disobedience, does not impress the court. The fact of

the matter remains that it is not necessary that the petitioner ought to have

been given a personal hearing or that the respondents were called upon to

determine the genuineness of the documents by recording evidence. One

of the fundamental which has been weighing with the respondents, while

considering an alternative allotment is, as to who is the owner. In the

instant case, there is no doubt that the petitioner's predecessor in interest

at the time of acquisition of land was in possession but it is nowhere

shown by the petitioner that in the subsequent khasra girdawari or in the

entries, they have been shown to be the owner.

10. On the contrary, the respondents themselves have placed on record

various entries purported to have been made by Tehsildar/SDM in the

ordinary discharge of their duties which show that "Sarkar Daulat

Madar" meaning thereby that the land belongs to the Government or the

Panchayat. If that be so, the question of allotting an alternative plot of

land to the petitioner does not arise. No doubt, in the instant case, the

petitioner's predecessor-in-interest has already drawn compensation to

the tune of approximately Rs.7,000/-. But that was long back in the year

1989. Merely because, compensation has been drawn, does not in itself is

sufficient to get an alternative allotment. There is a policy and a person

before he is allotted an alternative plot of land, more so when the land is

so scarce in Delhi, has to establish that he is the recorded owner before an

alternative plot of land is allotted.

11. In the instant case, I feel that the respondents have done whatever

was expected of them to be done by processing the case of the petitioner

for allotment of an alternative land and since a definite finding has been

returned on the basis of the documents that the land which was acquired

is not the land belonging to the father of the petitioner and the same

belonged to the Government, therefore, in my considered opinion, no

case for disobedience much less wilful disobedience is made out.

Accordingly, the present contempt petition is dismissed and the contempt

notice is discharged.

V.K. SHALI, J.

NOVEMBER 19, 2014 'AA'