Asha Devi And Anr. vs Govt. Of Nct Of Delhi And Ors.
2018 Latest Caselaw 5139 Del

#83


         IN THE HIGH COURT OF DELHI AT NEW DELHI

                                              Judgment delivered on: 29.08.2018

W.P.(C) 9094/2018

ASHA DEVI AND ANR.                                                ..... Petitioners
                             versus

GOVT. OF NCT OF DELHI AND ORS.                                    ..... Respondents
Advocates who appeared in this case:
For the Petitioners : Mr. Pardeep Gupta, Mr. Parinav Gupta, Ms. Mansi Gupta, Mr. Wazir
                      Singh Malik and Mr. Moazzam Ali, Advocates.
For the Respondents : Ms. Jyoti Taneja, Advocate for respondent Nos. 1 & 4/GNCTD.
                      Mr. Ram Kumar, Standing Counsel along with Mr. Sushil Kumar,
                      Advocates for respondent Nos. 2, 4 & 5/NDMC.
                      Mr. Arjun Pant, Advocate for DDA.
CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL

                                 JUDGMENT

SIDDHARTH MRIDUL, J (ORAL)

1. The present petition under Article 226 of the Constitution of India,

prays as follows:

"i) Respondents No. 1 & 2 be directed to make the payment/compensation in respect of the land which has been forcibly taken over by the respondents for construction/widening of road out of plot no. RZ-52, Sayed Nangloi, i.e. road Meera Bagh to GH-8, Paschim Vihar, New Delhi.

W.P.(C) 9094/2018

ii) Respondents may be directed not to interfere in the possession land of the land out of plot No. RZ 49 to RZ 52 including the land which has illegally been in default beyond the area earmarked by the respondent for development. Hence it may be declared that beside land already converted into road, rest of the land belong to the owner thereof and the respondent have no right over that; and

iii) to pass any other such or similar directions which court may deem fit and proper in the facts and circumstances of the case."

2. The petitioners' case is predicated on the circumstance that, the

Municipal Corporation of Delhi (for short 'MCD'), on the pretext of

widening the road, demolished a portion of the property bearing No. RZ-49

and RZ-52, Village Syed Nangloi, Delhi-110087 (hereinafter referred to as

'the subject property'). It is the petitioner's assertion that, in terms of the

mandate of Article 300A of the Constitution of India, read with the proviso

to Article 31A thereof, the right to property is a constitutional right and that

consequently, the State cannot acquire their property without following due

process of law.

3. It is, therefore, prayed that, the official respondents having acquired

their property, contrary to the mandate of law, be directed to pay

compensation to them, in respect of the land forcibly acquired in the process

of widening of the road. It is further prayed that, the respondents be directed

W.P.(C) 9094/2018

not to interfere in the petitioners' possession of the subject land.

4. At the outset, it must be pointed out that, predicated on the same cause

of action, the petitioners had earlier instituted a proceeding on 8th March,

2016 in Civil Suit No. 03/2010, titled as "Jagpal Singh Yadav vs. Municipal

Corporation of Delhi", before the Court of competent jurisdiction. In that

proceeding, the petitioners had sought relief by way of a permanent

injunction to restrain the official respondents from interfering with the

reconstruction being carried out by them in the subject property.

5. The MCD in its written statement filed in the said proceedings had

categorically asserted that, the subject property was never recognized by any

Municipal Authority or any other Government Department and that, the

address thereof had been fictitiously created by the petitioners. It was further

stated that, the subject property existed within the area of encroachment that

was duly cleared by them, in accordance with law.

6. The learned Civil Judge observed that, the petitioners had failed to

challenge the act of demolition on the part of the MCD whilst, seeking the

relief of permanent injunction, and had thereby acquiesced and accepted the

demolition of the subject property as legal. It was also held by the learned

Civil Judge that, no order of injunction can be passed, which may have the

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effect of disabling a statutory body from carrying out its functions. In view

of the foregoing findings, the learned Civil Judge dismissed the said suit as

being not maintainable for want of cause of action.

7. The petitioners carried the said order dated 8th March, 2016, rendered

in the said suit, in appeal. It is an admitted position that, the appeal instituted

on behalf of the petitioners has since been dismissed and the findings

returned by the learned Civil Judge have attained finality.

8. On a specific query from the Court, as to why the petitioners have not

instituted a civil suit seeking compensation for the alleged wrongful

dispossession from his property; it is urged that, the provisions of the Delhi

Municipal Corporation Act, 1957 (for short 'DMC Act'), and in particular,

the provisions of Sections 476 and 477 thereof, bar the institution of a civil

suit, for the said relief. It is further urged that, since the subject property has

been acquired by the official respondents, within the meaning of the

provisions of the Land Acquisition Act, no civil suit lies within the mandate

of the latter Act, as well. In other words, it has been asserted that, the

petitioners have no other remedy barring the present proceedings under

Article 226 of the Constitution of India, to seek the relief of compensation

for wrongful deprivation of property.

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9. Having heard learned counsel appearing on behalf of the parties, I find

myself unable to agree with the contentions raised on behalf of the

petitioners. The assertion of the petitioners that, the subject property belongs

to them is disputed on behalf of the official respondents, as aforestated.

Therefore, what the petitioners seek, is a declaration of their title over the

subject property, as a precursor to the grant of compensation for deprivation

thereof. In this behalf, it is trite to state that, this Court in extraordinary

proceedings under Article 226 of the Constitution of India, cannot determine

title of a person to any property. That, needless to state, lies within the

exclusive domain of a Court of competent civil jurisdiction.

10. Furthermore, the grant of compensation, being contingent upon the

declaration of the petitioners' title cannot be granted in the present petition.

In this behalf, it is relevant to observe that, the findings of the learned Civil

Judge insofar as, the petitioners have accepted the demolition of the subject

property is concerned, the same has attained finality. That being so, the grant

of compensation is not tenable in relation to the subject property.

11. Insofar as, the submission made on behalf of the petitioners that, the

mandate of Article 300A and the proviso to Article 31A of the Constitution

of India, have not been followed whilst acquiring the subject property is

W.P.(C) 9094/2018

concerned, the same is held to be fallacious, inasmuch as, the official

respondents cannot acquire land that belongs to them, in the first place.

Therefore, the submission that, the acquisition is without following due

process of law, is devoid of any merit.

12. It is a settled law that what cannot be done directly, cannot be

permitted to be done indirectly. The provisions of law cannot be evaded by

contrivance. The writ jurisdiction of this court cannot be used to subvert the

provisions of a statute as that would defeat the objective of the same. In this

view of the matter, it is observed that, it was open to the petitioners to seek

compensation in the civil suit instituted by them before the Court of

competent jurisdiction. Having failed to do so, the petitioners cannot be

permitted to seek that relief in the present proceedings under Article 226 of

the Constitution of India.

13. Lastly, the submission made on behalf of the learned counsel

appearing on behalf of the petitioners to the effect that, the provisions of the

DMC Act and the Land Acquisition Act bar the institution of civil suits is

concerned, the same is completely misplaced in the facts and circumstances

elaborated hereinabove. A reference to the provisions of Section 478 of the

DMC Act, leaves no manner of doubt that, civil suits can be instituted

W.P.(C) 9094/2018

against the official respondents in respect of any act done, or purporting to

have been done, in pursuance of the DMC Act or any rule, regulation or bye-

law made thereunder subject, however, to the issuance of a two months'

notice in writing by the aggrieved party, in that behalf.

14. In my considered view, therefore, before a party can be permitted to

contest infringement of his constitutional right to hold property and seek

compensation for the deprivation thereof, he must establish that, he has the

title to the subject property and when his title itself is in dispute, he cannot

put forward any claim based on that title, unless and until, his right, title and

interest over the subject property has been determined by a Court of

competent jurisdiction, in accordance with law.

15. In view of the foregoing, the present writ petition is devoid of merits

and is accordingly dismissed.

SIDDHARTH MRIDUL (JUDGE)

AUGUST 29, 2018 RS

W.P.(C) 9094/2018