Rajinder Mohan Malhotra vs Vice-Chairman, Delhi ...
2015 Latest Caselaw 6582 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Date of decision: 3rd September, 2015

+                               W.P.(C) No.1911/2014

       RAJINDER MOHAN MALHOTRA                       .... Appellant
                   Through: Mr. P. Chakraborty, Adv.

                                   Versus

    VICE-CHAIRMAN, DELHI DEVELOPMENT
    AUTHORITY                                 ..... Respondent

Through: Mr. S.R. Sharma, Adv.

CORAM:-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. The petition impugns the demand dated 15th October, 2013 of the

respondent Delhi Development Authority (DDA) on the petitioner of

Rs.28,26,671/- towards damage charges for encroachment of government

land as a pre-condition for considering the application of the petitioner for

conversion of leasehold rights in plot of land ad-measuring 115 sq. mtrs.

bearing No.E-18, Mayapuri, Phase-II, Delhi into freehold. Axiomatically,

the petitioner also seeks a mandamus to the respondent DDA to convert the

leasehold rights in the said plot of land into freehold. Ancillary relief of

mandamus directing the respondent DDA to remove the encroachments and

confiscate the kabar (junk material) dumped at the back of plot No.E-18 and

to take penal action against persons in unauthorized occupation is also

claimed.

2. Notice of the petition was issued and a counter affidavit has been filed

by the respondent DDA. No rejoinder has been filed by the petitioner in

spite of opportunity. The petition was dismissed in default of appearance of

the petitioner on 2nd July, 2015 but on the applications of the petitioner was

restored. The counsels have been heard.

3. It is the case of the petitioner:

(i) That the respondent DDA allotted plot No.E-18, Mayapuri

Industrial Area, Phase-II, Delhi ad-measuring 115 sq. mtrs. out

of plot of land ad-measuring total 157.5 sq. mtrs. in favour of

one Sh. Laxman Dass Madan; allotment of the entire plot of

land ad-measuring 157.5 sq. mtrs. was not made as the area in

excess of 115 sq. mtrs. at the back of the plot was under

encroachment.

(ii) That in the year 2005, the petitioner acquired the aforesaid plot

of land i.e. ad-measuring 115 sq. mtrs. from Sh. Laxman Dass

Madan on GPA and Agreement to Sell basis.

(iii) The petitioner on 31st December, 2005, in accordance with the

Policy of Conversion of Leasehold Rights into Freehold

notified on 2nd March, 2006 applied for conversion of the

leasehold rights under the aforesaid plot of land into freehold

and paid Rs.2,30,000/- therefor.

(iv) The respondent DDA however vide its letter dated 29 th

September, 2006 refused such conversion on the ground of

encroachment of a big portion of land under occupation of the

petitioner even though the encroachment was not by the

petitioner.

(v) That the backside of the plot, ad-measuring 42.5 sq. mtrs.

including the back lane, is under encroachment of kabaries who

are allottees of plot Nos.E-21 to E-25 and who have existed at

the site since prior to the date when 115 sq. mtrs. of plot No.E-

18 was allotted to Sh. Laxman Dass Madan.

(vi) That though in the year 2007, at the behest of the petitioner,

DDA had removed the encroachment but the said remaining

portion of the plot was again encroached upon.

(vii) That the petitioner has never used any area of the plot in excess

of 115 sq. mtrs. or the land at the rear of the plot though has

fenced the area to prevent illegal construction and dumping of

malba in the gali.

(viii) That since the petitioner pressed for conversion, the respondent

DDA sent a demand dated 2nd September, 2009 for

Rs.28,26,671/- towards damage charges without mentioning

the period for which the damages were charged and the rate of

damages or the calculation thereof.

(ix) The petitioner earlier filed W.P.(C) No.601/2010 in this regard

in this Court which was disposed of vide order dated 20 th April,

2010 though quashing the demand for Rs.28,26,671/- but

directing the respondent DDA to after giving an opportunity of

hearing to the petitioner pass a speaking order and if raising a

fresh demand by setting out the method of calculation thereof.

(x) However the respondent DDA did not comply with the order

compelling the petitioner to file W.P.(C) No.5650/2013 which

was disposed of vide order dated 9th September, 2013 directing

the respondent DDA to comply with the order dated 20 th April,

2010 in the earlier writ petition.

(xi) That the petitioner availed the opportunity of hearing and again

impressed upon the respondent DDA that he never used the area

fenced by him and the area was fenced purely in the interest of

respondent DDA and for no personal gain or benefit of the

petitioner.

(xii) That the respondent DDA however in the impugned order /

demand dated 15th October, 2010 reiterated the demand.

(xiii) Though, the petitioner alleging contempt by the respondent

DDA of the orders in the earlier writ petitions filed Cont.Cas

(C) No.80/2014, but the same was dismissed.

Accordingly, this petition has been filed contending:

(a) that only the Estate Officer of the respondent DDA

appointed under Section 3 of the Public Premises (Eviction

of Unauthorized Occupants) Act, 1971 could have passed

the order for payment of damages for unauthorized use and

occupation of public premises and in accordance with the

procedure prescribed therein and demand for damages for

unauthorized use and occupation made by the DDA

otherwise is illegal, and,

(b) That the demand / order dated 15th October, 2013 does

not deal with the contentions of the petitioner.

4. The respondent DDA in the impugned demand / order dated 15th

October, 2013 has recorded:

(I) That the application filed by the petitioner for conversion of

leasehold rights into freehold was rejected owing to the

petitioner having encroached on a portion of the land adjacent

to land allotted to his predecessor in interest.

(II) That though the petitioner earlier stated that it was not him but

kabaries who had encroached upon the land adjacent to the plot

allotted to the predecessor in interest of the petitioner but

subsequently admitted that the petitioner himself had fenced the

area to prevent the kabaries and jhuggiwals from performing

illegal activities on the said land - the petitioner thus admitted

being in possession of the said land.

(III) That this was also confirmed by the field inspection reports

from time to time.

(IV) That the demand for Rs.28.26,671/- has been raised for the

period from 14th September, 1994 to 24th April, 2007 for an area

of 91.10 sq. mtrs. on the basis of commercial rates as per

policy.

5. That the respondent DDA in its counter affidavit has pleaded:

(a) That the counsel for the petitioner, when this writ petition first

came up before this Court on 24th March, 2014, confined the

challenge herein only to the jurisdiction and powers of Director

(CL) of the respondent DDA and who had issued the impugned

demand / order dated 15th October, 2013 to levy damages and

had withdrawn the challenge if any on the merits of the

calculation of the damages; thus the scope of this petition is

confined to the jurisdiction and power of Director (CL) of the

respondent DDA to raise the demand.

(b) That the Director (CL) has passed the said order in accordance

with the specific directions of this Court in order dated 9 th

September, 2013 in W.P.(C) No.5650/2013 earlier preferred by

the petitioner and thus it is not open to the petitioner to

challenge its jurisdiction.

(c) That the Director (CL) of the respondent DDA has been

conferred the powers of a Estate Officer by a notification dated

6th August, 2003 under Section 3 of the PP Act and had passed

the impugned order dated 15th October, 2013 after giving an

opportunity to the petitioner.

(d) That thus there was no merit in the challenge by the petitioner

to the jurisdiction of Director (CL) of the respondent DDA and

to which challenge this petition was confined.

On merits, it is pleaded that the petitioner, for his use, has

unauthorizedly occupied an area of 92.02 sq. mtrs. belonging to the

government adjacent to his plot No.E-18, ad-measuring 115 sq. mtrs. and

that the petitioner by stating that he has fenced the area, has admitted to the

encroachment.

6. The counsels argued on the line of their respective pleadings.

7. I not only find merit in the contention of the counsel for the

respondent DDA that the only ground to which the petitioner confined the

challenge in this petition, i.e. Director (CL) of the respondent DDA not

having jurisdiction to assess the damages as the damages can be assessed

only by an Estate Officer under the PP Act stands met as the Director (CL)

of the respondent DDA has been conferred the powers of an Estate Officer,

but I am also of the view that irrespective of the aforesaid, this writ petition

is not maintainable.

8. As would be borne out from what is set out hereinabove, the

controversy is whether it is the petitioner who is in encroachment of land

adjacent to 115 sq. mtrs. of plot No.E-18 allotted to the predecessor in

interest of the petitioner, as claimed by the respondent DDA or the said

encroachment is by third persons as contended by the petitioner. The said

dispute is incapable of adjudication in writ jurisdiction. In writ jurisdiction,

on the basis of respective pleadings, this Court cannot find out which of the

two, petitioner or the respondent DDA is speaking the truth. All that can be

observed is that from the reasoning given by the respondent DDA in the

impugned order dated 15th October, 2013, of the petitioner by admitting to

having fenced the said adjacent land has admitted to the encroachment,

cannot be said to be such which is so illogical and arbitrary which no

reasonable person could have reached.

9. Insofar as the challenge by the petitioner to the demand for damages

for unauthorized occupation and assessment thereof otherwise than by way

of a proceeding under the PP Act is concerned, I may notice that the said

demand has been raised by the respondent DDA on the petitioner as a pre-

condition to the conversion of leasehold rights in 115 sq. mtrs. of land to

which title is claimed by the petitioner into freehold. Inspite of my repeated

asking, the counsel for the petitioner has been unable to show the demand

made on the petitioner in the said fashion to be illegal. The respondent

DDA, when approached for such conversion, is fully entitled to ensure that

the encroachment if any done by the applicant of adjacent land is removed

and the charges therefor are paid. It is not as if the respondent DDA on its

own, without resorting to the proceedings under the PP Act has made such a

demand on the petitioner. A demand for charges for unauthorized use and

occupation in accordance with the rules applicable to assessment thereof can

always be made as a pre-condition for conversion sought. The said damages

are not required to be assessed by the Estate Officer in a proceeding under

the PP Act. I have in N.K. Varma Vs. Union of India

MANU/DE/0455/2012 held that a claim for damages for unauthorised use

and occupation, as a condition for grant of lease of such land, can be made

without the assessment thereof by the Estate Officer under the provisions of

PP Act. LPA No.124/2012 preferred thereagainst is found to have been

disposed of vide order dated 11th July, 2012 recording a compromise

wherein Mr. N.K. Varma agreed to pay damages for use and occupation

recomputed by Land & Development Office (L&DO).

10. I am thus of the view that besides on the ground pleaded by the

respondent DDA, there is otherwise also no merit in the petition.

11. Dismissed.

No costs.

RAJIV SAHAI ENDLAW, J SEPTEMBER 03, 2015/'gsr' (corrected & released on 21st October, 2015)