Delhi High Court
Malsh Charitable Trust Through Its ... vs Lieutenant Governor, Govt. Of Nct Of ... on 16 April, 2024
Author: Tushar Rao Gedela
Bench: Tushar Rao Gedela
$~63
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 16.04.2024
+ W.P.(C) 5462/2024
MALSH CHARITABLE TRUST THROUGH
ITS TRUSTEE MS. JAYSHREE SINGH ..... Petitioner
versus
LIEUTENANT GOVERNOR,
GOVT. OF NCT OF DELHI AND ORS ..... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr. Vivek Kohli, Senior Advocate with
Mr. Shahshank Aggarwal and Ms.
Bhavya Bhatia, Advocates
For the Respondents : Ms. Hetu Arora Sethi, ASC, GNCTD
CORAM:
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
JUDGMENT
TUSHAR RAO GEDELA, J. (ORAL)
[ The proceeding has been conducted through Hybrid mode ]
1. Exemption allowed subject to all just exceptions.
2. The application stands disposed of.
W.P.(C) 5462/2024 & CM APPL. 22539/2024
3. This is a writ petition under Article 226 of the Constitution of
India, 1950, seeking inter alia the following reliefs:-
"a) Issue a writ of Certiorari and/or other order(s) of the
similar nature quashing the arbitrary and illegal Notice
bearing No.F. NO.52/DCF(S)/LAND/ASOLA/2022-
23/12642-49,Dated 06.01.2024 illegally affixed by
Respondent No.2; and
b) Issue a writ of mandamus and/or other order(s) of the
similar nature directing the Respondents directing the
Respondents to carry out a wholistic and complete
demarcation of all land in village Asola, by the prescribed
procedure, after giving due notice to the Petitioner."
4. Mr. Vivek Kohli, learned senior counsel appearing for the
petitioner submits that this Court had by a catena of judgments protected
the interests of the parties who have appeared before this Court. He
submits that the present petition is also similar to those matters.
Learned senior counsel submits that though it is the stand of the
petitioner that the impugned notice dated 06.01.2024 was pasted on
02.04.2024, however even assuming that it was indeed pasted on
06.01.2024 the threat of coercive action remains.
5. He submits that by way of a registered sale deed the present
petitioner had purchased the properties more particularly enumerated in
para 5 of the writ petition comprising Khasra Nos. 1743(8-6), 1741(5-0),
1737(4-0), 1734(3-0), 1747(1-0), 1747(5-2), 1739(0-10), 1734(1-1),
1737(1-16), 1741(3-0), 1741(4-17), 1747(1-18) admeasuring 8.12 acres
and also of the Khasra Nos. 1735(0-19), 1736(11-16), 1740(5-7) &
1748(28-19) admeasuring 9.80 acres and 1737, 1744, 1745, 1746, 1747,
1748 & 1756 admeasuring 19.70 acres, total ad measuring 37.62 acres.
Out of the Khasra Nos. 1743, 1741, 1737, 1734, 1747, 1747, 1739,
1734, 1737, 1741, 1741 and 1747 area admeasuring 8.12. acres by way
of a registered sale deed were presented by petitioner and the remaining
by way of Agreement to Sell and other similar documents.
6. Learned senior counsel submits that this Court had in judgment of
Asola Homes Welfare Association & Anr. vs. GNCT of Delhi & Ors.
vide the order dated 23.05.2022 while examining Section 28 of Delhi
Land Reforms Act, 1954 had passed certain directions to the respondent
- Forest Department as well as to the Deputy Commissioner,
Department of Revenue. The said directions may be made applicable to
the present case to be similar on facts.
7. Learned senior counsel also submits that the impugned notice
dated 06.01.2024 refers to Khasra Nos.1498, 1528, 1506 and 1552 of
Village Asola, Tehsil Saket which according to the Notification is a
reserved forest land as per Notification dated 24.05.1994 and
02.04.1996. It is alleged in the said notice that the petitioner has
encroached upon the said forest land which is a violation of Section 26
of Indian Forest Act, 1927 and Forest Conservation Act, 1980 and as
such were directed to vacate the said lands. It also referred to the act of
demolition in case of non compliance.
8. Learned senior counsel submits that the petitioner either by
himself or through the predecessor-in-interest was in occupation of the
said land from the year 1994 itself till today consistently and
continuously without any hindrance whatsoever. He submits that the
demarcation reports have been placed on record by the petitioner as also
the original Masavi of the year 1908.
9. By relying upon the judgment of this Court in Ishwar Sahai vs.
Govt. of NCT of Delhi & Ors passed on 18.01.2024 as also Rajshree
Singh vs. Lt. Governor, Govt. of NCT of Delhi & Ors. rendered on
31.01.2024 that in similar circumstances this Court had interfered in
such notices and had passed detailed directions.
10. Issue notice.
11. Notice accepted by Ms. Hetu Arora Sethi, learned counsel
appearing for respondents. She submits that it has been incorrectly
stated that the notices were affixed on 02.04.2024. She submits that the
notices were indeed pasted on 06.01.2024 and as such the petitioner has
approached this Court with inordinate delay. She submits that no action
has yet been taken. However, this Court may not interfere with the
reclamation of the lands belonging to the Forest Department. She also
submits that it is clear from the recitals of the impugned notice that the
said khasra numbers indicated in the impugned notice were declared as
reserved forest land as per Notification dated 24.05.1994 and
02.04.1996. As such the encroachment by the petitioner would be
violation of the law. Having regard thereto, Ms. Sethi submits that this
Court ought not to interfere in the proceedings and let the law take its
own course.
12. After having heard the parties, this Court passes the following
order.
13. There is little doubt the fact that the petitioner has been in
possession of the said land for the last more than a decade by virtue of
the registered sale deed dated 13.10.2008, which has already been
annexed to the present writ petition in respect of the Khasra Nos. 1734,
1734, 1737, 1737, 1739, 1741, 1741, 1747 and 1743.
14. This Court in Asola Homes Welfare Association and Another vs.
GNCT of Delhi had made following observations and issued particular
directions which are extracted hereunder:
"5. Section 28 of the Delhi Land Revenue Act, 1954
stipulates as under:-
"28. (1) All disputes regarding boundaries shall
be decided by the Deputy Commissioner, as far
as possible, on the basis of existing survey maps,
but if this is not possible, the boundaries shall be
fixed on the basis of actual possession.
(2) If in the course of an inquiry into a dispute
under this section, the Deputy Commissioner is
unable to satisfy himself as to which party is in
possession, or if it is shown that possession has
been obtained by wrongful dispossession of the
lawful occupants of the property within a period
of three months previous to the commencement d
the inquiry the Deputy Commissioner-
(a) in the first case, shall ascertain by summary
inquiry who is the person best entitled to the
property, and shall put such person in
possession; and
(b) in the second case, shall put the person so
dispossessed in possession and shall then fix the
boundary accordingly."
6. The statutory provision enables the concerned parties to
approach the Deputy Commissioner regarding any dispute
relating to boundaries. The parties, herein, are also before
this Court today with a limited issue pertaining to the
similar subject matter.
7. Keeping in view the statutory provisions as well as the
facts in the petition, this Court is inclined to allow the
limited prayer made by learned counsel for the petitioners
to move a detailed application along with the writ petition
before the Deputy Commissioner (South), Department of
Revenue, Government of NCT of Delhi within two weeks.
8. It is directed that after receipt of the application, the
Deputy Commissioner (South), Department of Revenue,
Government of NCT of Delhi, shall decide the dispute
related to the incidental and ancillary issue of demarcation
of the land in accordance with law, keeping into
consideration the facts and contentions made in the instant
writ petition and pass a detailed/well-reasoned order
expeditiously, preferably within a period of six weeks. The
petitioners are also directed to cooperate in the
proceedings.
9. No coercive steps shall be taken against the petitioners as
per the list of names given on page 77, Annexure-P4 to the
petition till the disposal of the application. It is also directed
that status quo with respect to the boundaries of the
respective petitioners shall be maintained by both the
parties."
15. The petitioner in this case, with respect to the khasra numbers
which were purchased by registered sale deed dated 13.10.2008
admeasuring 8.12 acres, appears to be the owner of the said property and
claims to be in possession thereof and as such it would be appropriate to
pass similar orders as passed by this Court in the aforesaid cases.
16. Accordingly, the petitioner, to the extent of the area covered by
the registered sale deed is permitted to file a detailed representation
annexing all the relevant documents before the Deputy Commissioner
(South), Department of Revenue, Government of NCT of Delhi. The
Deputy Commissioner would decide the dispute and ancillary issue of
demarcation of land in accordance with law keeping in consideration the
facts and contentions raised in the present writ petition and pass a
detailed order. An opportunity of hearing shall also be provided to the
representative of the petitioner.
17. The said representation be disposed of within six weeks from
today in accordance with law. The petitioner is directed to ensure
cooperation with the competent authority of the respondent.
18. In the meanwhile, till the representation is disposed of, no
coercive steps shall be taken by the Forest Department in pursuance of
the notice dated 06.01.2024.
19. With respect to the remaining portion of the property qua which
only Agreement to Sell and other documents have been executed which
are not registered, this Court is of the opinion that interest of justice
would suffice if the petitioner is permitted to move the competent Court
of civil jurisdiction on the touchstone of possessory rights of the
petitioner. To that extent the petitioner may move the appropriate
proceedings before the competent Court within three weeks from today.
Till such time, no coercive action shall be taken by the Forest
Department in respect of that portion too.
20. The petition is disposed of alongwith pending application with
above directions with no order as to costs.
TUSHAR RAO GEDELA, J.
APRIL 16, 2024
ns
