Navjot Pal Singh Randhawa & Anr. vs Delhi Development Authority
2016 Latest Caselaw 1380 Del

*                 HIGH COURT OF DELHI AT NEW DELHI

+                   W.P. (C) No.4712/2011 & C.M. No.9547/2011

                                    Decided on : 22nd February, 2016

NAVJOT PAL SINGH RANDHAWA & ANR. ...... Petitioners
              Through: Mr. Ved Prakash Sharma, Ms. Amrit
                       Kaur Oberoi, Ms. Pooja Yadav &
                       Mr. Kunal Dutta, Advocates.

                        Versus

DELHI DEVELOPMENT AUTHORITY            ...... Respondent
             Through: Ms. Shobhna Takiar & Mr. Udayan
                      Khandelwal, Advocates.

                                  WITH

+               W.P. (C) No.7425/2011 & C.M. No.16843/2011

RAKESH NARANG                                     ...... Petitioner
            Through:             Mr. Mrinal Bharti & Mr. Manish
                                 Shekhar, Advocates.

                        Versus

DELHI DEVELOPMENT AUTHORITY            ...... Respondent
             Through: Ms. Shobhna Takiar & Mr. Udayan
                      Khandelwal, Advocates.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI




W.P. (C) No.4712/2011                                     Page 1 of 21
 V.K. SHALI, J.

1. These are two writ petitions filed by the petitioners under Article

226 of the Constitution of India seeking issuance of appropriate writ,

order or direction thereby quashing/setting aside of all the actions of the

respondent/DDA whereby it intends to undertake the action for

demolition against house bearing No.RZ 137/9 now having new number

52A, JNU Road, Village Kishan Garh, New Delhi measuring 155 square

yards in violation of the alleged policy framed by the Government of

Delhi applicable to an unauthorized colony which have been granting

provisional regularization certificate pending consideration before the

Delhi Government which is to be granted in terms of the National Capital

Territory of Delhi Laws (Special Provisions) Act, 2011 and to pass such

other consequential orders as may be deemed fit. This is the prayer in the

first writ petition bearing W.P. (C) No.4712/2011 titled Navjot Pal Singh

Randhawa & Anr. vs. DDA. So far as the second writ petition bearing

W.P. (C) No.7425/2011 titled Rakesh Narang Vs. DDA is concerned, all

the facts are similar except property is bearing No.RZ 80-C/9 measuring

800 square yards which is 3.09 bighas, part of Khasra No.2797/2016 and

1675/12 situated at JNU Road, Kishengarh, Mehrauli, Delhi. However,

for the sake of convenience, facts of W.P. (C) No.4712/2011 are dealt

with in the present order.

2. The case of the petitioners is that they are the owners and in

possession of house bearing No.RZ 137/9 now having new number 52A,

JNU Road, Village Kishan Garh, New Delhi measuring 155 square yards.

The petitioners are claiming themselves to be the purchasers of the

aforesaid plot from one Brijender Singh vide Agreement to Sell, General

Power of Attorney, Affidavit, Will etc. dated 16.11.1991 and that they

were also put in physical vacant possession. The petitioners are alleging

that they built the property in the year 1992 and constructed two rooms

with boundary wall which was being used by them only for residential

purposes. They have got electricity meter installed and are stated to be

paying house-tax to the MCD. It is also stated that the petitioners are

members of the resident welfare society known as Village Kishan Garh

Welfare Association which is duly registered under the Societies

Registration Act with the Registrar of Societies, Government of NCT of

Delhi on 1.2.1994 and there are around 999 members of the said Society.

The property in question of the petitioners is stated to be falling in an

unauthorized colony known as JNU Road, Village Kishan Garh and it is

stated that the Association has already been granted a Provisional

Regularization Certificate on 17.9.2008 by respondent No.2.

3. It is alleged that the Association had earlier filed a writ petition

bearing No.9131/2008 in the High Court of Delhi seeking appropriate

writ or direction including the writ of prohibition from carrying out

demolition and taking possession of the houses/plots/built-up structures

of the aforesaid unauthorized colony and also sought direction that they

should not interfere with the possession of the members of the

Association so far as their individual plots/houses are concerned, which

was disposed of by this Hon'ble court on 3.5.2010 in terms of the order

passed on 17.8.2009. It is stated that on 19.5.2006, the Parliament

enacted the Delhi Laws (Special Provisions) Act, 2006 and in terms of

the said Act, a moratorium against demolition and removal of

encroachment was put for a period of one year with effect from 1.1.2006.

It has been stated that the said Act has been extended from time to time

and at the time of filing of the writ petition was extended upto 31.12.2011

and now it stands extended upto 31.12.2017.

4. It is alleged that respondent No.1/DDA in utter violation of their

own guidelines and the protection granted to the petitioner in terms of the

National Capital Territory of Delhi Laws (Special Provisions) Act, 2011

have carried out demolition on 6.7.2011 and thereby demolished the

property No.52A, JNU Road. The petitioners alleged that they brought

this illegal action on the part of the respondent to the notice of the Station

House Officer, Vasant Kunj, New Delhi as this action was initiated mala

fide. It is also stated that respondent Nos.2 and 3 have failed to discharge

the statutory duties in implementing their policies including the policy of

regularization and consequently, the same may be done. The petitioners

in support of their contention filed number of documents and various

interim orders passed by different courts including the writ court granting

the petitioner a restraint order against any demolition being undertaken by

the DDA.

5. The respondent/DDA filed its reply affidavit and challenged the

very maintainability of the writ petition. It was contended that the

petitioners do not have any right, title or interest in the land in question as

no document of ownership has been placed by them on record. Further, it

was stated that the land in question which was encroached and

unauthorizedly occupied by the petitioners was actually a gaon sabha land

and vested with the gaon sabha and the same has been usurped by the

petitioners illegally. It has been stated that the respondents are widening

and constructing the road known as Aruna Asaf Ali Road in technical

collaboration with UTTIPEC and reasons for this is that the answering

respondent cannot be made to depend on the whims and fancies of the

petitioners for recovery of possession of the area in question which is

under the occupation of the petitioners is forming part of the approved

road plan according to which a substantial portion of the land under the

occupation of the petitioners is falling in green area abutting to the main

road itself. It has also been stated that the width of the road is 21.20

meters out of which 10.20 meters falls in road and remaining, that is, 11

meters falls in the green belt abutting the road. It has been contended by

the learned counsel for the respondent that they have attached the

approved plan of the road as well as the rough sketch of the plan which

shows that the road is to be widened and the area which is under the

occupation of the petitioners falls in the so-called green area which

necessarily has to be taken possession of by the answering respondent for

the purpose of giving effect to a public project, namely, widening of a

road.

6. The respondent has also stated in its affidavit that the plea of

moratorium having been put on the demolition of unauthorized

construction till 31.12.2017 is also not applicable to the facts of the

present case because Section 4 clause (b) of the National Capital

Territory of Delhi Laws (Special Provisions) Act, 2011 clearly lays down

that any retrieval of possession or removal of unauthorized construction

on the Government land which comes in the way of effecting a public

purpose or a public project will not enjoy the benefit of the said

provision, against demolition or allied things.

7. I have heard Mr. V.P. Sharma and Ms. Amrit Kaur, the learned

counsel on behalf of the petitioners and Ms. Shobhana Takiar, the learned

counsel on behalf of the respondent.

8. The first contention of Mr. Sharma is that the petitioners are the

owners and in possession of the property bearing No.RZ 137/9 now

having new number 52A in an admittedly unauthorized colony known as

JNU Road, Village Kishan Garh, New Delhi measuring 155 square yards

of land which they had purchased on 16.11.1991. On this parcel of land,

it is stated that two rooms have been built which are being used for

residential purpose only and for which electricity connection has been

duly obtained as well as the house-tax is being paid. It is also stated that

from 1992 till the filing of the petition, no fresh construction activity has

been carried out and this being a part of the larger cluster of houses

falling in Kishan Garh area, the residents welfare association has already

approached Government of Delhi for regularization of the unauthorized

colonies and the Government of Delhi has already issued a provisional

regularization certificate on 17.9.2008 which grants protection against

any action for demolition or removal of alleged encroachment although

there is no case of encroachment so far as the petitioners are concerned.

9. It has also been further supplemented by the contention that the

National Capital Territory of Delhi Laws (Special Provisions) Act, 2011

which came into force originally in 2007 and has been extended on

annual basis is now holding the field till 31.12.2017 and putting a

restriction on demolition action being carried out by the respondent. It is

stated that because of this statutory embargo, no action for demolition for

removal of alleged unauthorized construction ought to be taken against

the petitioner as this will not only result in violation of law but also cause

disruption. Reference has been made by the learned counsel to the

Government policy dated 11.9.2007 which has been taken note of in a

case titled Harijan Kalyan Samiti Regd. & Ors. vs. Government of NCT

of Delhi & Ors.; W.P. (C) No.5200/2008, copy of which has been placed

on record at page 85 of the paper book.

10. Mr. Sharma has further supplemented his contention that so far as

the filing of the writ petition by the Resident Welfare Association bearing

No.9131/2008 is concerned, to which reference has been made by the

respondent in its counter affidavit, that was on a different cause of action

and the present writ petition filed by the petitioner is on a different cause

of action and therefore, no analogy can be drawn between the two.

11. The learned counsel has also contented that the total width of the

road plus foot path is 25 meters which has been divided in the following

manner :-

"(a) Black top carriage way on either side is 10 meters each ;

(b) Centre verge of one meter;

(c) Foot path on the side of the DDA flats is 1.5 meters;

and

(d) Foot path on the village side is 2.5 meters.

Total width for road plus foot paths on both the sides is 25 meters."

12. It is the contention of Mr. Sharma that so far as the area of the

petitioners is concerned, it falls beyond the area of 25 meters and thus,

does not come in the alignment of the road so as to call for any action for

demolition. It has also been contended by Mr. Sharma that the road is

already built-up and is operational. He has drawn the attention of the

court to some of the photographs placed on the record to show that the

road which has been built-up and is in existence is having a free flow of

traffic without any obstruction from the property of the petitioner.

13. Ms. Takiar, the learned counsel for the respondent has vehemently

contested the submission made by the learned counsel for the petitioner

on all counts. It has been stated by her that the petitioners are claiming

themselves to be the owners of the suit property but not even a single

document has been placed by them on record which will show that they

have any title to the property. On the contrary, it is contended that the

petitioners are the rank trespassers on a public land which was vested in

Gaon Sabha and was thereafter handed over to the DDA under Section 22

of the DDA Act to be used as a Nazul land. It is denied that the

construction which has been purported to be raised by him does not come

in alignment of the road. It is not denied that the road is already made

operational but it was stated that the road which has been made

operational is only the carriage way and not the complete road including

the foot path and the green area on the side of the petitioners where their

property is situated. The learned counsel has tried to draw the attention

of the court to the approved plan of the road as well as to the rough sketch

and contended that area which is shown in orange and is belonging to the

petitioner falls directly in the area of green belt which is required by the

respondent for the purpose of widening of the road as a green area

abutting in the entire stretch of the road on the either side.

14. It has also been contended by the learned counsel for the

respondent that the writ petition which was filed by the Resident Welfare

Association was in the representative capacity and the relief which was

claimed in the said writ petition was akin to the relief which was being

claimed by the petitioner individually. The only difference being that in

the writ petition which was filed on behalf of the Resident Welfare

Association was a representative writ petition which require the relief to

be granted to all the residents whose properties were falling in the

alignment of the road itself and therefore, it cannot be said by any stretch

of imagination that the writ petitions filed by the two persons and the

association were different. It is nothing but a gross misuse of the

processes of law as repeated writ petitions are being filed to put stoppage

to the work which is being done for the public at large.

15. As regards the protection which is purported to have been granted

to the petitioner under the National Capital Territory of Delhi Laws

(Special Provisions) Act, 2011, it has been contended by Ms. Takiar that

there is a saving clause under Section 4 (b) which is in the nature of an

exemption or a proviso. Under this proviso, the land owning agency is

well within its right to remove the unauthorized construction or

encroachment on its land provided the said land is needed for public

purpose or for infrastructural purpose. It is contended by Ms. Takiar that

because of this exemption clause granted in the laws enacted by the

competent legislature, the petitioners require the land in question for the

purpose of larger good of the public and therefore, it cannot be prohibited

from initiating any action against the present petitioner.

16. I have carefully considered the submissions made by the respective

sides and have also gone through the record carefully. At the outset, it

may be pertinent here to mention that the area of controversy is very short

one, that is, as to whether the petitioners' occupation in respect of a

parcel of a land which they claim to be just 155 square yards of land

consisting of a structure of two rooms, kitchen in W.P. (C) No.4712/2011

and the area of 800 square yards land, etc. in the writ petition

No.7425/2011, deserves any protection from this court or not on account

of being a part of the larger cluster known as Kishan Garh Resident

Welfare Association which is an unauthorized colony and in respect of

which the provisional certificate for regularization is purported to have

been granted by the Government of Delhi. But before examining this

point, it will be pertinent here to mention that the entire edifice of the

petitioners case is built on the question of his being the owner of the

property in question. The ownership of an immoveable property is

clearly to be established in terms of Section 17 (b) of the Registration

Act, 1908 which lays down that no right, title or interest would accrue in

respect of any immoveable property in favour of any person value of

which is more than Rs.100/- unless and until the document itself is

registered. Meaning thereby, that before a person claims himself to be

the owner of a property, he must establish that there is a registered sale

deed, conveyance deed or lease deed in respect of the said parcel of land

of which he is claiming the owner. In the instant case, there is no such

document which has been placed by the petitioner on record. In W.P. (C)

No.4712/2011, the petitioner is pitching his case on the basis of the fact

that land in question belonging to one Chuni Lal and they had purchased

the said parcel of land from Bijender Singh in the year 1991 and for this

purpose, they are placing reliance on agreement to sell, general power of

attorney, Will, etc. These documents cannot be considered to be the

documents conferring ownership on the petitioner. This is more so after

the pronouncement of the judgment of the Apex Court in Suraj Lamp and

Industries Pvt. Ltd. vs. State of Haryana & Anr.; AIR 2012 SC 206.;

wherein it has been clearly laid down that these documents or the

documents of the like nature would not be deemed to be conferring any

right, title or interest in the suit property. All that these documents entitle

a beneficiary of such documents is to sue the original owner of the

property for perfecting his title in respect of the said parcel of land.

Therefore, these documents on the touchstone of Suraj Lamp's case

(supra) cannot be considered to be the documents of ownership of the

plot of land in question.

17. In addition to this, in W.P. (C) No.7425/2011, even the connecting

documents showing the ownership of the land in favour of Chuni Lal,

from whom the land in question was purchased, are not complete. The

only document which has been placed on record is pertaining to the year

1963-64 khatauni/khasra girdawari where in respect of the land in

question the ownership is recorded in favour of one Chuni Lal but after

that there is not even a single document which is placed on record which

would show that Chunni Lal continued to be the owner or in respect of

this parcel of land or for that matter even the names of the present

petitioners are not reflected in any khatauni or khasra girdawari assuming

it to be an agricultural land. Therefore, in the absence of all these

documents, it cannot be ruled in favour of the petitioner that he is the

owner of the parcel of land but he is certainly an unauthorized occupant

and in possession of the land in question.

18. It may also be pertinent here to mention that Ms. Takiar has drawn

the attention of the court to certain documents which show that after

enactment of Delhi Land Reforms Act, 1954, the land in question

belonged to the Gaon Sabha and thereafter, it was treated to have been

vested in the Central Government and forming a part of the land

belonging to the Government under Section 22 of the DDA Act and thus

became Nazul land which is to be dealt with by the DDA. The MCD had

also issued a notification under Section 507 showing that the land in

question was urbanized but the only organization which could deal with

the same was the DDA and no other. Therefore, all these facts clearly

establish that the petitioner is not the owner and nor could he said to be so

and the respondent/DDA is the owner of the land.

19. The second submission which would arise for consideration is that

even if we assume that the petitioner is not the owner but being in

occupation and having built the structure on the said parcel of land, the

question would arise as to whether the petitioner is entitled to any

protection against demolition of its property on the land in question till

31.12.2017 when the protection granted under the statutory laws which

has been passed by the Government of NCT can be given to him. In this

regard, it may be pertinent here to mention that there is no doubt that the

house of the petitioner is forming a larger part of the village cluster

colony which is known as JNU Road, Village Kishan Garh. It is also not

in dispute that before filing of the present writ petition, there have been a

series of writ petitions filed by various residents of the said locality in

their individual capacity or by their Residents Welfare Association in the

representative capacity, as has been done by the association to save the

demolition action being taken against any of the owners of the land,

whose houses/lands were abutting the main road or whose houses were in

alignment of the road. In both these writ petitions, the association as well

as the petitioners have failed to get any permanent order restraining the

respondents from any demolition. Normally, that should have been the

end of the litigation inasmuch as these petitions are representative

litigations and the fresh writ petition ought not to have been filed but it

seems that as the property of the petitioner was under a cloud, it had

ventured into speculative litigation of going into repeated writ petitions in

order to save its property and such a practice of filing repeated writ

petitions either in his own names or in the name of the association or

through different name has to be deprecated. It is also not in dispute that

the house of the petitioner is falling in alignment of the road abutting the

main road. Having said so, I would say that it is not open to the petitioner

to refer to the various plans or rough sketches and to contend that the road

has already been widened and therefore, no portion of his land be taken

away because his land would be taken only if he is not able to establish

his right or title to the same. If he does not have any right to hold the

land by all means, the owner of the said parcel of land, that is, the

respondent/DDA is well within its right to remove the encroachment or to

take the possession of the land for the purpose of affecting a public

project. It may also be pertinent here to mention that no doubt there is a

protection against demolition or removal of encroachment but that

protection is admittedly available till 31.12.2017 but certainly the

subsequent provision Section 4 clause (b) clearly exempts such properties

as are falling within the domain of creation of infrastructural facilities or

which are to be used for larger public purpose and thus, demolition in

such a case is not prohibited and the demolition action can be taken.

20. I do not agree to the contention of Mr. Sharma that green area does

not form part of the infrastructural facility or the road and since the road

has been made operational, therefore, the land for the purpose of green

area cannot be retrieved. It is stated that the court has to take holistic

view of the project. If it is done then, the green belt of the plan will also

form part of the project and the road. It is also pertinent here to mention

that this being the position, it is not open to the petitioner to contend that

the road which has to be only of 10 meters carriage way on the either side

and then there is a central verge of 1.5 meters, on one hand there is a foot

path plus green area extended upto 1.5 meters while as in the area of New

Delhi, this area is much wider and broader nearly 2.5 meters. All these

facts are only, I would say, a mirage which is sought to be created by the

petitioner to save its property.

21. During the course of arguments, Mr. Sharma had even offered a

suggestion that so far as W.P. (C) No.4712/2011 is concerned, the

petitioner Navjot Pal Singh Randhawa is prepared to voluntarily give up

the portion which is, more particularly, shown in orange which will take

care of the green belt proposed to be built by the respondent/DDA with

the condition that the portion which will remain under the occupation and

available with the petitioner would be only 11 meters or so on which he

will continue to have his rights till the time the same is decided by an

appropriate forum in accordance with law.

22. I feel that though the suggestion could have been considered by the

respondent; however, Ms. Takiar was very emphatic in rejecting this offer

given by the learned counsel for the petitioner. Her contention was that

as the petitioners do not have any right, title or interest in the entire parcel

of land and as the land itself belong to the DDA, therefore, there was no

question of taking only a portion of the land and the other portion

permitted to remain with the petitioners.

23. Since the offer given by Mr. Sharma has not been accepted by the

learned counsel for the respondent/DDA, therefore, the court cannot do

much about the same. As regards the merits of the matter, the court has

come to the conclusion that in the light of the discussion hereinabove that

the petitioners admittedly do not have any right, title or interest in the

land especially in the light of the fact that the Apex Court has pronounced

the judgment in Suraj Lamp's case (supra), further the documents of the

petitioners do not have any sanctity in law on the touchstone of Section

17 (b) of the Registration Act, 1908, therefore, they cannot be considered

to be the owners. The land admittedly belongs to the DDA on account of

the same originally belonging to Gaon Sabha and on the creations of the

DDA Act, the land has been vested with the Government of India which

has transferred it to the DDA under Section 22 of the DDA Act to be

treated as Nazul land and therefore, the respondents are well within their

right to seek such appropriate action for retrieval of the land as may be

deemed fit.

24. In the light of the aforesaid facts, in my considered view, the writ

petitions are totally misconceived and accordingly, the same are

dismissed; however, the respondent/DDA are restrained from carrying

out any precipitative action including an action for demolition or

dispossession till 15.3.2016. This concession has been given on the oral

request of Mr. V.P. Sharma, the learned counsel for the petitioner and the

fact that the petitioner should be given reasonable time to assail the order.

The parties are directed to bear their own costs.

V.K. SHALI, J.

FEBRUARY 22, 2016 'AA'