Delhi Development Authority vs Khem Chand And Ors.
2017 Latest Caselaw 5723 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RSA No. 387/2015

%                                                  16th October, 2017

DELHI DEVELOPMENT AUTHORITY                  ..... Appellant
             Through: Mr. Rajiv Bansal, Sr. Advocate with
                      Mr. Kush Sharma, Advocates.

                          versus

KHEM CHAND AND ORS.                                    ..... Respondents

            Through:               Mr. Madan Lal Sharma and Mr. B.D.
                                   Kaushik, Advocates for R-1, 2 and
                                   legal heirs of R-3.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This Regular Second Appeal under Section 100 of the

Code of Civil Procedure, 1908 (CPC) is filed by the Delhi

Development Authority (DDA) impugning the concurrent judgments

of the courts below; of the trial court dated 9.2.2014 and the first

appellate court dated 26.3.2015; by which the courts below have

decreed the suit of the respondent nos. 1 to 3/plaintiffs and restrained

the appellant/defendant no. 1/DDA from carrying out any demolition

over the land of the respondent nos. 1 to 3/plaintiffs situated in Khata

No. 1019/150 and 1020/150 in Village Madanpur Khadar, New Delhi.

2. The sole issue requiring decision between the parties was

as to whether respondent nos. 1 to 3/plaintiffs were in possession of

acquired land situated in Khata no. 149 of village Madanpur Khadar or

the respondent nos. 1 to 3/plaintiffs were in possession of different

Khata numbers being 1019/150 and 1020/150 Village Madanpur

Khadar.

3. Admittedly, between the parties there was an earlier

litigation being a writ petition which was filed by respondent nos. 1 to

3/plaintiffs in this suit. This writ petition was Civil Writ Petition No.

4051/2003, certified copy Ex.PW1/10, and this writ petition was

disposed of vide order dated 28.7.2003 observing that the appellant

herein can only take action against the respondent nos. 1 to 3/plaintiffs

in case the demarcation report already prepared (dated 20.5.2003,

Ex.PW1/9 in this case) would be challenged by the appellant and

thereafter set aside by the competent revenue authority. This order

dated 28.7.2003 in Civil Writ Petition No. 4051/2003 reads as under:-

"Present: Mr. Vikas Kumar, Advocate for the petitioner.

Ms. Sangeeta Chandra, Advocate for the respondent.

+ CW 4051/2003 & CM No.6936/2003 The petitioner had earlier filed the CW No.3484/2002 which was disposed of on 23.05.2003. The petitioner had withdrawn the writ petition with liberty to approach the Revenue Authorities for appropriate relief. The petitioner has again filed the writ petition seeking restrain order against the demolition. On a pointed query being raised to learned counsel for the petitioner, learned counsel states that the petitioner has no grievance in respect of report of the Revenue Authorities but the apprehension of the petitioner is that action may be taken against the petitioner contrary to the report of the Revenue Authorities.

In my considered view, the Revenue Authority having carried out the demarcation, no party is permitted to take action contrary to the said report until and unless the report is set aside before the competent Revenue Authorities. Thus in case the respondent has to take any action, the same shall be in accordance with the report of the Revenue Authorities. However, in case the respondent is aggrieved with the demarcation carried out, it is always open to the respondent to take appropriate steps to impugn the same in accordance with law and in case the respondent succeeds in the same, it can take action against the property thereafter in accordance with law. Writ petition stands disposed of.

Dasti to learned counsel for the parties.

CM No. 6936/2003 No further orders are called for in this application in view of the disposal. Application stands disposed of."

4. A reading of the aforesaid order leaves no manner of

doubt that any right of the appellant to take action against respondent

nos. 1 to 3/plaintiffs was if it challenged the demarcation report dated

20.5.2003 Ex.PW1/9 and admittedly as the courts below note that

before taking action against respondent nos. 1 to 3/plaintiffs for

demolition the appellant took no steps to get the demarcation report

dated 20.5.2003 set aside. In fact, the trial court notes that even after

filing of the suit, and for more than ten years till the suit was decided,

appellant took no steps to challenge the demarcation report and

therefore which has necessarily to be taken as final. I, accordingly,

agree with this conclusion and findings of the courts below.

5.(i) The demarcation report Ex.PW1/9 dated 20.5.2003 has

been prepared by a government official being Revenue

Official/Tehsildar (staff of SDM). Originally the demarcation

proceedings were fixed on 14.5.2003, report Ex.PW1/7, and on which

date all the parties including the appellant agreed that demarcation will

take place on 20.5.2003 at 10:30 a.m. The demarcation on 20.5.2003

was admittedly done in the presence of officials of the appellant but

officials of the appellant did not sign the same because they had

objections to the report. However, appellant never after preparation of

the report dated 20.5.2003 ever stated by writing a letter either to the

respondent nos. 1 to 3/plaintiffs or to the concerned revenue officials

who carried out demarcation on 20.5.2003 that what were their

objections to the report.

(ii) The objection which has been taken in the suit by the appellant

for objecting to the demarcation report dated 20.5.2003 is that the

relevant instructions to the revenue department requires that before

demarcation is done, three fixed points should be taken, but the

demarcation report dated 20.5.2003 is not prepared by taking three

fixed demarcation points. To this aspect, learned counsel for

respondent nos. 1 to 3/plaintiffs have countered by referring to the

contents of the demarcation report dated 20.5.2003 that two

demarcation points being an old bridge on the canal and secondly the

canal was itself was taken before demarcation commenced. It is

argued on behalf of respondent nos. 1 to 3/plaintiffs that the

demarcation report dated 20.5.2003 itself mentions that there is no

other fixed point reference since other fixed points references were

already demolished by the appellant itself and therefore no other fixed

points were available except the two fixed points of the bridge of the

canal and the Agra canal itself.

6. In this regard, I have gone through the written statement

filed by the appellant and it is seen that in this written statement

appellant itself does not state that if three fixed demarcation points

were available then what were these three demarcation points.

Therefore, in my opinion, there is no illegality in the demarcation

report dated 20.5.2003 prepared by taking two fixed demarcation

points because there were only two fixed points available. After all

how could the revenue official create a third fixed demarcation point

which did not exist, inasmuch as, all other fixed demarcation points

were already demolished by the appellant in order to construct a

colony called Sarita Vihar on the acquired land of Village Madanpur

Khadar, New Delhi.

7. In view of the aforesaid, I do not find that any illegality

or perversity is committed by the courts below. No substantial

question of law arises.

8. Dismissed.

OCTOBER 16, 2017                            VALMIKI J. MEHTA, J
AK