Delhi Development Authority vs Mohd. Sher Nabi Chaman & Ors.
2015 Latest Caselaw 1578 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         C.M.(M) No.304/2014
%                                                          24th February, 2015

DELHI DEVELOPMENT AUTHORITY                      ..... Petitioner
                    Through: Mr.Ajay Verma, Advocate.
             versus

MOHD. SHER NABI CHAMAN & ORS.                  ..... Respondents

Through: Mr.A.Maitri, Advocate for R-1.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

C.M.No.2131/2015

Exemption allowed, subject to all just exceptions.

Application is disposed of.

C.M.No.2132/2015

There is no opposition to this application which is allowed and the delay

in filing C.M.No.2130/2015 is condoned.

Application stands disposed of.

C.M.No.2130/2015

1. By this application, the respondent no.1/plaintiff/applicant/review

petitioner seeks modification of the consent order dated 07.11.2014 passed by

this Court by which the petition under Article 227 of the Constitution of India

filed by the petitioner/Delhi Development Authority (DDA) as also the main

suit were disposed of. Counsel for respondent no.1/plaintiff/applicant/review

petitioner concedes that though this application is titled for modification,

actually the respondent no.1/plaintiff/applicant /review petitioner seeks a

review of the consent order dated 07.11.2014. Let us at this stage reproduce

this consent order dated 07.11.2014, and which reads as under:-

"1. The issue in the present proceedings, which impugns the orders of the court below deciding the application under Order 39 Rules 1 and 2 of Code of Civil Procedure, 1908 (CPC), is whether the land which is in possession of the respondent no.1/plaintiff falls in khasra no.22/3, 22/4, 22/8, 22/9 and 25/20/2 between Block F-1 & F-2, Sunder Nagri, Village Mandoli, Shahdara, Delhi or the land is actually part of khasra no.976 min, 977 min, 978 min and 979 min of Village Mandoli, Shahdara, Delhi. Whereas the respondent no.1/plaintiff states that the suit property is located in khasra no.22/3, 22/4, 22/8, 22/9 and 25/20/2 between Block F-1 & F-2, Sunder Nagri, Village Mandoli, Shahdara, Delhi, the petitioner/DDA as also the Director of Education, Government of NCT of Delhi (respondent no.6 herein and who is petitioner in C.M.(M) No.632/2014) contend that the suit property is situated in khasra no. 976 min, 977 min, 978 min and 979 min of Village Mandoli, Shahdara, Delhi. Admittedly petitioner and the Director of Education do not claim any rights in the khasra no.22/3, 22/4, 22/8, 22/9 and 25/20/2 between Block F-1 & F-2, Sunder Nagri, Village Mandoli, Shahdara, Delhi and which land is not acquired land, and the petitioner and the Director of Education only claim that they have rights in khasra no. 976 min, 977 min, 978 min and 979 min of Village Mandoli, Shahdara, Delhi being the lands

which have been acquired under the Land Acquisition Act, 1894. The respondent no.1/plaintiff states that he has nothing to do and is not staying or occupying khasra no. 976 min, 977 min, 978 min and 979 min of Village Mandoli, Shahdara, Delhi as claimed by the petitioner and the Director of Education.

2. The issue therefore clearly boils down to the location of the property which is occupied by the respondent no.1/plaintiff. If the land of the respondent no.1/plaintiff is not situated in khasra no. 976 min, 977 min, 978 min and 979 min of Village Mandoli, Shahdara, Delhi as claimed by the petitioner and the Director of Education, then, surely the respondent no.1/plaintiff will have complete rights with respect to the land on which the respondent no.1/plaintiff is staying and petitioner and the Director of Education will not be entitled to disturb the possession of the respondent no.1/plaintiff in the land in which the respondent/plaintiff is located as the said land is not situated in khasra no. 976 min, 977 min, 978 min and 979 min of Village Mandoli, Shahdara, Delhi.

3. Counsel for the parties have taken instructions and it is agreed that demarcation of the land which is occupied and in possession of the respondent no.1/plaintiff be now conducted by the total station method by the concerned SDM of the area with the assistance of the necessary revenue officials at the cost to be equally shared by both the parties. It is also agreed that none of the parties will file any objections to the demarcation report which will be conducted by the concerned revenue authorities in the presence of the parties and their Advocates. The object of demarcation being done by the total station method, and objections not being filed by the parties, is because the report is to be prepared in the presence of the parties and their Advocates, and the same is to ensure that the present litigation as also the suit comes to an end because none of the parties claim rights/ownership of the land/properties of other party and issue is

only of location which will be sorted out in terms of the demarcation report prepared by the total station method.

4. Let the parties deposit the charges for the demarcation by the total station method with the concerned authorities within a period of four weeks of the concerned SDM/revenue officials informing the parties as to the amounts which have to be deposited for conduct of the demarcation by total station method. The charges will be intimated to the parties by the revenue officials positively within four weeks of the receipts of the copy of this order. Within eight weeks thereafter the SDM of the area alongwith the concerned revenue officials will prepare the demarcation report of the land in possession and occupation of the respondent no.1/plaintiff. Both the parties at the time of depositing of the charges with the concerned authority will file with the concerned authority their addresses as also addresses of their Advocates so that the SDM before conducting of the demarcation by total station method can give notices to the respective parties and their Advocates. Respective parties and their Advocates will also exchange communications in writing by registered post informing the other party and their Advocates with respect to the date which is fixed for demarcation of the land in question.

5. As stated above, the parties agree to abide by the finality of the demarcation report prepared in terms of the present order.

6. The SDM after preparation of the demarcation report will give a copy of the demarcation report to each of the parties and their Advocates by taking an endorsement in writing with respect to giving of the demarcation report.

7. Both the parties will maintain status quo with respect to title, possession and construction with respect to the land in question till preparation of the demarcation report and whereafter parties will abide by the demarcation report and the directions otherwise contained in the present order. If demarcation report is in favour of the respondent no.1/plaintiff, the petitioner and the

Director of Education will not in any manner disturb the rights of the respondent no.1/plaintiff and if demarcation report is in favour of the present petitioner/DDA and the Director of Education, the respondent no.1/plaintiff will not object to the DDA and the Director of Education demolishing whatever constructions which exist on the on the land which would be found in khasra no. 976 min, 977 min, 978 min and 979 min of Village Mandoli, Shahdara, Delhi as claimed by the DDA and the Director of Education, and taking of the possession of those lands by DDA/Director of Education falling in khasra no. 976 min, 977 min, 978 min and 979 min of Village Mandoli, Shahdara, Delhi.

8. The petitions as also the suit will stand disposed of in terms of aforesaid directions and observations, leaving the parties to bear their own costs."

2. Before I turn to the contents of the order dated 07.11.2014, the context

in which the said consent order had been passed is required to be noted. The

subject suit was a suit for injunction filed by the respondent

no.1/plaintiff/applicant/review petitioner claiming rights and injunction

against dispossession of land admeasuring about 12 bighas and 18 biswas

(approx. 19000 sq. yds or 1,60,000 sq. ft) situated in the area of village

Mandoli, Shahdara, Delhi. The respondent no.1/plaintiff/applicant/review

petitioner filed the subject suit in June vacations and obtained an ex parte

order of status quo. This ex parte order of status quo was vacated by the

trial court thereafter noting that the respondent

no.1/plaintiff/applicant/review petitioner in the guise of the ex parte order of

status quo had started making construction on the suit land. The main

injunction application of the respondent no.1/plaintiff/applicant/review

petitioner thereafter was argued and the same was dismissed by the trial

court in terms of its order dated 01.5.2013 by making the following pertinent

observations and conclusions:-

"10. It is argued by Ld. Counsel for plaintiff that plaintiff is in possession of the suit property and he can not be evicted from the suit property except with due process of law. Ld. Counsel for plaintiff relied upon two documents one is demarcation report dated 10.08.98 and another is a letter dated 18.11.98 written by Director Land Management East DDA. I have perused the file. There is no demarcation report of dated 10.08.98. The plaintiff has placed on record the demarcation report dated 16.06.99. The document dated 10.08.98 is a copy of the record got from the Tehsildar Seemapuri. This document describes that DDA has no concerned with khasra no.22/3, 4, 8, 9 and 25/20/2, of village Mandoli. But it is not the dispute between the plaintiff and the defendants. The main dispute is whether the suit property falls in khasra no. 22/3, 4, 8, 9 and 25/20/2, of village Mandoli or falls in khasra no. 976 min., 977 min., 978 min. and 979 min of village Mandoli. The plaintiff has placed on record the demarcation report dated 16.06.99 and the defendant DDA has placed on record the demarcation report dated 16.06.2004. From the perusal of demarcation report dated 16.06.99 it reveals that the same has been conducted by a retired Kanoongo Meerut U. P. The retired Kanoongo UP was engaged by the plaintiff to assist him. The demarcation dated 16.06.99 has been conducted by the Kanoongo by foot (by kadmi). The demarcation report dated 16.06.99 in itself prima facie is not correct because the demarcation/measurement can not be done by foot. It has to be done by chain zarif or by fita. The demarcation by foot can not be deemed to be a correct demarcation. On the other hand the defendant/DDA has placed on record the demarcation report dated 16.06.04 which is conducted by the senior officers including

Tehsildar Seema Puri, Tehsildar Slum & JJ along with other Kanoongos of Department of Revenue, Slum & JJ as well as of DDA. The demarcation report placed on record by the DDA is more reliable than the demarcation report relied by the plaintiff. Moreover the site plan placed on record by the plaintiff as well as by DDA along with demarcation report shows the location of the suit property differently. The site plan filed by the DDA shows that there is a distance of 440 Ghathe between the khasra no. 22/3, 4, 8, 9 and 25/20/2, of village Mandoli and khasra no. 976 min., 977 min., 978 min. and 979 min of village Mandoli. The distance is significant.

xxxxx

12 For granting injunction the conduct of the party who seeks injunction is also relevant. I have gone through the file. The present suit was filed during vacations of June and plaintiff had able to get exparte status quo. But after taking the protection of status quo plaintiff has starting to plotting of the suit property. Thereafter my Ld. Predecessor has vacated status quo and observed that the cumulative study of all the photographs shows that plaintiff has raised many construction inside the suit land but he has not fenced his land for which status quo ante was granted. From the perusal of these photographs the conduct of the plaintiff is clearly reflect that he has raised illegal construction inside the suit property without seeking permission of this Court and has misused the order of this court. Court has passed status quo ante order in respect of the suit property which was also binding upon the plaintiff. It is not the case of the plaintiff that someone else has raised the construction inside the suit property and not the plaintiff. It is the settled law that a party who seeks equity must approach the court with clean hands. The acts and dealings of the plaintiff seeking injunction must be above the board and free from any taint and illegality. In the present case plaintiff was never allowed to raise any construction inside the property which he has done as proved from the photographs. The dividing the land into plots by raising pakka wall and also raising a pakka room is a clear cut misuse of the process of this court and the order issued by this

court. In my opinion in these circumstances plaintiff is not entitled for any protection from this court. Hence it is a fit case where a status quo order should be recalled. Therefore, the application of the defendant is allowed & status quo order dated 04.06.99 is recalled and plaintiff is restrained from raising any further construction over the suit land till final disposal of the suit.

13. Moreover, the plaintiff has initially not made party to the DDA. And he has also not disclosed anywhere in his original plaint that he had also filed a suit against the DDA. But in the amended plaint the plaintiff has stated in para no. 12 that earlier he had filed a suit against the DDA which was dismissed in default on 04.12.96. It is clear cut concealment by the plaintiff by not disclosing the filing of earlier suit. It might be possible that plaintiff has deliberately not made the DDA as party initially in the present suit with malafide intention for getting the status quo in which he has succeeded. This sole ground also made dis-entitled the plaintiff for ad-interim injunction.

14. Ld. Counsel for plaintiff argued that plaintiff is in settled possession of the suit property and he can not be evicted without following due process of law. The settled possession must be i) effective, ii) undisturbed, and iii) to the knowledge of the owner or without any concealment by the trespasser. The photographs placed on record shows that the land is vacant land. The plaintiff has also not placed on record any document which shows that the predecessor in interest of plaintiff was in possession of suit property immediate before the said property was sold to the plaintiff. So, I am of the prima facie opinion that plaintiff is not in settled possession of the suit property. The demarcation report filed by the plaintiff is not prima facie trust worthy. The land in dispute has been allotted to the Director Education for construction of a senior secondary school. Prima facie suit land falls in khasra no. 976 min., 977 min., 978 min. and 979 min of village Mandoli that land is an acquired land. The Hon. Supreme Court of India in case titled as Premji Ratansay Shah & Ors. V/s. UOI & Ors (supra) has held that no injunction can

be granted in favour of encroachment on public land and against the true owner. I am of the view that plaintiff is not entitled for the relief of ad-interim injunction. Application stands dismissed.

Nothing is stated herein above tantamount of the expressions on the merits of the case as parties has yet to lead evidence and prove their case on merits." (emphasis added)

3. A reference to the aforesaid observations and conclusions of the trial

court shows the gross dishonesty of the respondent

no.1/plaintiff/applicant/review petitioner and the malafide nature of the

subject suit in which the application for ad-interim injunction under Order

XXXIX Rules 1 & 2 of the Code of Civil Procedure, 1908 (CPC) was filed.

The respondent no.1/plaintiff/applicant/review petitioner claimed to be in

possession of the suit land, however, the respondent

no1/plaintiff/applicant/review petitioner could not show any proof of settled

possession. The photographs filed on record show that the land was a vacant

land and some constructions were made by the respondent

no.1/plaintiff/applicant/review petitioner taking advantage of the ex parte

status quo order obtained in June vacations. That order as stated above was

recalled and the injunction application which was argued by which, the

respondent no.1/plaintiff/applicant/review petitioner again sought the interim

order, and hence the aforesaid observations were made by the trial court

which has been reproduced above, to decline the grant of interim injunction.

The trial court noted that the main dispute was as to whether the suit

property falls in khasra nos.22/3, 22/4, 22/8, 22/9 and 25/20/2 of village

Mandoli as claimed by the respondent no.1/plaintiff/applicant/review

petitioner or the property fell in khasra nos.976 min., 977 min., 978 min. and

979 min. of village Mandoli as was the case of DDA. The trial court as

stated above, dismissed the injunction application filed by the respondent

no.1/plaintiff/applicant/review petitioner by which the respondent

no.1/plaintiff/applicant/review petitioner claimed the rights to continue in

possession of the land in question.

4. I may at this stage itself note and repeat that the area of the land

would be roughly about 19,000 sq. yds in the city of Delhi and even on a

conservative estimate the price would be around Rs.50-100 crores.

5. The respondent no.1/plaintiff/applicant/review petitioner since was

not successful before the trial court in getting his interim application

allowed, filed an appeal before the appellate court being MCA No.14/13 and

the appellate court by a perfunctory and a casual order dated 13.09.2013

allowed the appeal by simply observing as under:-

" It was submitted by the Ld. Counsel for the appellant that the appellant is the owner of suit property. It was contended that the suit

property was never acquired by the government. It was contended that DDA has admitted that there is no dispute regarding the ownership and possession of appellant over suit property. It was also contended that as per demarcation report the suit property of appellant is separate from the land of DDA. It was further contended that the order passed by the Ld. Trial Court is against the facts and law and the same is liable to be set aside.

On the other hand, it was submitted by the Ld. Counsel for the respondents that the impugned order is justified and there is no infirmity in the impugned order. It was contended that the appellant has no right, title or interest in the suit property as the suit property falls within the land which has been acquired by the government through award no.1956. It was contended that the appellant is encroacher upon the land of DDA. It was contended that the appellant being encroacher is not entitled to any interim injunction in his favour.

Admittedly, the appellant is in physical possession of the suit property. There is also no dispute from the side of DDA regarding the ownership of the property.

The main controversy between DDA and appellant is regarding the location of the suit property. As per DDA suit property is situated between F-1 and F-2 Blocks, Sunder Nagri, Village Mandoli, Shahdara, Delhi which falls in Khasra Nos. 976 to 979 and the same is acquired land. On the other hand, the main contention of the appellant is that suit property falls in Khasra No.22/3, 22/4, 22/8, 22/9 and 25/20/2 between block F-1 and F-2, Sunder Nagri, Village Mandoli, Shahdara, Delhi which was never acquired by the government.

Perusal of the file shows that the demarcation was carried out in respect to the location of the suit property on 10.09.1998. This demarcation was carried out by the revenue department. As per this demarcation report, the suit property of appellant falling in Khasra No.22/3, 22/4, 22/8, 22/9 and 25/20/2 between Block F-1 and F-2, Sunder Nagri, Village Mandoli, Shahdara, Delhi is very much separate from the land of the DDA and the property of appellant has no concern with DDA or MCD or any other government department.

The perusal of the file further shows that the appellant has been enjoying the interim protection for several years. As per demarcation

report, the property of the appellant is separate from the property of DDA. Admittedly, the appellant is in possession of the suit property.

In view of the above discussion, I am of the considered view that the impugned order cannot be sustained and the same is set aside. The appeal is allowed. The respondents are restrained from interfering in the possession of the appellant in respect of the suit property.

Trial Court record be sent back along with copy of the judgment.

The case is old one. It is about 17 years old. The trial has not yet commenced. The trial court shall expedite the trial and decide the case expeditiously.

The appeal file be consigned to the Record Room."

6. A reading of the aforesaid observations of the first appellate court

shows that the first appellate court did not refer to the relevant observations

and conclusions of the trial court and without finding the respondent

no.1/plaintiff/applicant/review petitioner to be in settled possession of the

land granted the interim injunction order on the basis of a self-serving

demarcation report filed by the respondent no.1/plaintiff/applicant/review

petitioner dated 10.9.1998

7. It is in the aforesaid context of lack of validity of the order of the first

appellate court and the validity of the order of the trial court that the case

was argued on 07.11.2014 resulting in passing of the consent order on

07.11.2014, which disposed of not only the petition but also the suit

inasmuch as it was not the case of the respondent

no.1/plaintiff/applicant/review petitioner that he had any rights in the khasra

nos. 976 min., 977 min., 978 min. and 979 min. of village Mandoli,

Shahdara, Delhi which the petitioner/DDA said to be belonging to it, and in

which according to the petitioner/DDA, the respondent

no.1/plaintiff/applicant/review petitioner actually was squatting and not in

khasra nos. 22/3, 22/4, 22/8, 22/9 and 25/20/2 of village Mandoli, Shahdara,

Delhi as claimed by the respondent no.1/plaintiff/applicant/review petitioner.

By the consent order dated 07.11.2014, since the issue was crystallized that

the respondent no.1/plaintiff/applicant/review petitioner only claimed the

rights to khasra nos. 22/3, 22/4, 22/8, 22/9 and 25/20/2 of village Mandoli, if

the respondent no.1/plaintiff/applicant/review petitioner was not in

possession of khasra nos.22/3, 22/4, 22/8, 22/9 and 25/20/2 of village

Mandoli, but was on the land comprising in khasra nos.976 min., 977 min.,

978 min. and 979 min. of village Mandoli as claimed by the petitioner/DDA,

the respondent no.1/plaintiff/applicant/review petitioner would have no

rights to the land area which he was occupying once that was the land of the

petitioner/DDA. In law it is perfectly justified for parties to arrive at a

settlement by disposing of not only a challenge to an order deciding an

injunction application under Order XXXIX CPC but also the suit itself

inasmuch as the controversy was in a narrow compass of the respondent

no.1/plaintiff/applicant/review petitioner whether or not was occupying land

in khasra nos.22/3, 22/4, 22/8, 22/9 and 25/20/2 of village Mandoli or the

land in khasra nos.976 min., 977 min., 978 min. and 979 min. of village

Mandoli as claimed by the petitioner/DDA.

8. It is required to be stated at this stage that originally in Delhi, when

the village areas and rural areas were unbuilt, there used to be traditional

methods of demarcation in terms of the revenue laws, and which

presupposed existence of fields i.e unconstructed lands being rural and

agricultural lands. Over a point of time due to unplanned development of

various colonies in Delhi, colonies came up even on rural lands.

Construction having been made, the demarcation no longer could be done by

the traditional methods and demarcation is now done by the laser method

called as the Total Station Method by of course following the principles

contained in the revenue laws of having fixed points of location. A

constructed area in a colony cannot surely be demarcated like fields where

there is no construction and therefore it is not in any manner illegal using the

Total Station Method which involves laser technology and which has been

done in Delhi in hundreds and thousands of cases, whereby demarcation

disputes have been resolved by the revenue authorities. Obviously, since the

respondent no.1/plaintiff/applicant/review petitioner had no rights in khasra

nos. 976 min., 977 min., 978 min. and 979 min. of village Mandoli which

were claimed by the petitioner/DDA, the respondent

no.1/plaintiff/applicant/review petitioner agreed in passing of the aforesaid

consent order dated 07.11.2014.

9. It also bears note that even in the present application, it is not the case

of the respondent no.1/plaintiff/applicant/review petitioner that the consent

given as recorded on 07.11.2014, was not given by and on behalf of the

respondent no.1/plaintiff/applicant/review petitioner. It is only argued that

the consent order has been passed by ignoring the earlier demarcation report

and that the consent arrangement as recorded in the order dated 07.11.2014

has no basis in terms of the revenue laws as applicable to Delhi.

10. Let me at this stage refer to the arguments which have been urged on

behalf of the respondent no.1/plaintiff/applicant/review petitioner and which

are:-

(i)     There is no bar in recalling of a consent order, more so because till





 date     no     benefit    has    been      taken      by        the       respondent

no.1/plaintiff/applicant/review petitioner of the consent order.

(ii) The consent order is violative of the provisions of the Delhi Land

Reforms Act, 1954 and the related revenue laws because there is no

provision of demarcation by the Total Station Method under the revenue

laws.

(iii) The main petition which had been disposed of by the consent order

dated 07.11.2014 was only a limited petition to challenge the disposal of an

injunction application, and therefore the suit itself could not have been

disposed of and the suit could have been disposed of only after trial/ leading

of evidence.

(iv) The consent given with respect to non-filing of the objections to the

demarcation report to be prepared in terms of the consent order dated

07.11.2014 takes away valuable rights and forecloses rights of the

respondent no.1/plaintiff/applicant/review petitioner to file objections to the

demarcation report, and therefore such a consent could not have been given.

(v) The respondent no.1/plaintiff/applicant/review petitioner was the

owner of the valuable land and even if the respondent

no.1/plaintiff/applicant/review petitioner is found to be situated not in khasra

nos.22/3, 22/4, 22/8, 22/9 and 25/20/2 of village Mandoli but on khasra

nos.976 min., 977 min., 978 min. and 979 min. of village Mandoli of the

petitioner/DDA, since the respondent no.1/plaintiff/applicant/review

petitioner after all was the owner of the valuable land and which land

comprising in khasra nos.22/3, 22/4, 22/8, 22/9 and 25/20/2 of village

Mandoli which would be with the DDA, the position which emerges is that

loss would be caused to the respondent no.1/plaintiff/applicant/review

petitioner because on the one hand, on his land DDA would be found to be

situated, and on the other hand, it is the DDA who continued on the suit land

existing in khasra nos.976 min., 977 min., 978 min. and 979 min. of village

Mandoli.

11. In my opinion all the arguments urged on behalf of the respondent

no.1/plaintiff/applicant/review petitioner are nothing but sheer abuse of the

process of the law and an endeavour to get out of the clear-cut consent terms

as recorded in the consent order dated 07.11.2014. The intention of the

respondent no.1/plaintiff/applicant/review petitioner is to somehow or the

other keep on occupying valuable government land of about 19,000 sq. yds.

in the city of Delhi and whose value on a conservative estimate as stated

above would be at least in the region of Rs.50-100 crores. Each of the

arguments urged on behalf of the respondent no.1/plaintiff/applicant/review

petitioner are without any substance or merit whatsoever and are dealt with

hereinafter.

12. The first argument urged on behalf of the respondent

no.1/plaintiff/applicant/review petitioner that a consent order can be

recalled, more so because no benefit is taken of the same by the respondent

no.1/plaintiff/applicant/review petitioner, is an argument without any merit

whatsoever for the reason that in the subject application, it is nowhere the

case of the respondent no.1/plaintiff/applicant/review petitioner that the

consent was not given. Giving or not giving of consent is a factual aspect

and once that factual aspect is not sought to be recalled, it is therefore a fact

that consent was indeed given for passing of the order dated 07.11.2014.

Therefore, a consent order cannot be recalled unless and until the consent is

based on a concession which is not in accordance with the law and which is

not the position here. Also, it is relevant to note that if a legal proceeding

creates rights which can be waived then waiver of such rights would not

mean that the consent given is against the law. Reference in this behalf can

be made to the judgment of the Supreme Court in the case of Martin &

Harris Ltd. Vs. VIth Additional Distt. Judge & Ors. (1998) 1 SCC 732,

wherein the Supreme Court has observed that there cannot be estoppel

against the law only if the legal provision is one which is not capable of

being waived, but if the legal provision is with respect to a matter of private

interest, such a private interest can always be waived ie only matters of

public policy and pubic interest comprised in a statute cannot be waived but

private interest can always be waived. Therefore, an entitlement to file

objections to a demarcation report, being the private right of the respondent

no.1/plaintiff/applicant/review petitioner, can and could always have been

waived by the respondent no.1/plaintiff/applicant/review petitioner, more so

in the facts of the present case where the respondent

no.1/plaintiff/applicant/review petitioner claims no rights whatsoever on the

land comprising in khasra nos.976 min., 977 min., 978 min. and 979 min. of

village Mandoli and only claims rights in khasra nos.22/3, 22/4, 22/8, 22/9

and 25/20/2 of village Mandoli.

13. At this stage, I may also deal with and dispose of an argument urged

on behalf of the respondent no.1/plaintiff/applicant/review petitioner that the

right to file objections if taken away would seriously affect the rights of the

respondent no.1/plaintiff/applicant/review petitioner, however, this argument

conveniently ignores the fact that both the parties agreed to be bound by the

fresh demarcation report to be carried out in terms of the Total Station

Method. Since both the parties agreed, more so because there was a very

narrow scope of the respondent no.1/plaintiff/applicant/review petitioner

existing whether in khasra nos.22/3, 22/4, 22/8, 22/9 and 25/20/2 of village

Mandoli as claimed by him or in khasra nos.976 min., 977 min., 978 min.

and 979 min. of village Mandoli which was the land of the petitioner/DDA,

therefore, there is no prejudice to the respondent

no.1/plaintiff/applicant/review petitioner and hence these arguments urged

on behalf of the respondent no.1/plaintiff/applicant/review petitioner are

rejected.

14. The next argument which was urged on behalf of the respondent

no.1/plaintiff/applicant/review petitioner was that the revenue law does not

entitle the demarcation by the Total Station Method, however, in my

opinion, this is an argument of desperation because there is no bar under the

revenue law not to carry out demarcation by the Total Station Method.

Merely because a particular method is provided in the revenue laws which

was passed many decades back, does not mean that the modern methods

with respect to demarcation cannot be adopted by the revenue authorities,

more so when such a method is now the only available proper method,

because the traditional methods were with respect to areas and lands which

were unconstructed and wherein demarcation could be done by traditional

methods, but when the entire city is built up, demarcation will have to be

done by the laser method i.e the Total Station Method inasmuch as which is

done with respect to the fixed and specific points in terms of the revenue

law. This argument urged on behalf of the respondent

no.1/plaintiff/applicant/review petitioner is also therefore rejected.

15. The respondent no.1/plaintiff/applicant/review petitioner next argued

that since only an interim order was being challenged in the present petition,

the main suit itself could not have been disposed of, however, this argument

has to be rejected because surely it is conceivable for parties at any stage of

the suit, including before an appellate court, to dispose of not only the

interim application but also the suit itself. Once parties give consent to

disposal of a suit and an interim order in a particular manner, I fail to

understand as to how the convenient argument can now be sought to be

urged to set aside the consent terms recorded in the order dated 07.11.2014.

16. Finally, it was argued on behalf of the respondent

no.1/plaintiff/applicant/review petitioner that he is after all the owner of the

valuable land comprising in khasra nos.22/3, 22/4, 22/8, 22/9 and 25/20/2 of

village Mandoli, and his land would in fact be with the petitioner/DDA,

which has built up a colony therein. Even this argument, in my opinion is

totally frivolous and specious because this was not the issue in the suit filed

by the respondent no.1/plaintiff/applicant/review petitioner wherein the issue

only was that whether the respondent no.1/plaintiff/applicant/review

petitioner's land is located in khasra nos.22/3, 22/4, 22/8, 22/9 and 25/20/2

of village Mandoli as claimed by him or is in fact squatting on the

government land or public land of the petitioner/DDA situated in khasra

nos.976 min., 977 min., 978 min. and 979 min. of village Mandoli.

Therefore, the argument that the respondent no.1/plaintiff/applicant/review

petitioner is being prejudiced is an argument totally without merit because

surely the respondent no.1/plaintiff/applicant/review petitioner can file the

appropriate proceedings to claim the land claimed to be owned by him and

stated to be situated in khasra nos.22/3, 22/4, 22/8, 22/9 and 25/20/2 of

village Mandoli, however, the same cannot mean that the respondent

no.1/plaintiff/applicant/review petitioner can continue to illegally occupy a

public land belonging to the petitioner/DDA comprising in khasra nos.976

min., 977 min., 978 min. and 979 min. of village Mandoli.

17. In view of the above, the present application being an endeavour to

overreach not only the petitioner/DDA but also this Court, and that too for a

malafide purpose of holding on valuable public land, the review petition is

therefore dismissed with costs of Rs.2 lacs inasmuch as it is high-time that to

certain sections of litigants of this country a very strong message be sent that

the courts are in no manner lenient in allowing the illegal occupation of the

government/public land. Costs can be recovered by the petitioner/DDA by

filing execution proceedings against the respondent

no.1/plaintiff/applicant/review petitioner.

FEBRUARY 24, 2015                                  VALMIKI J. MEHTA, J
KA