Sh. Anand v. GNCT of Delhi

1. Rule. With the consent ofthe parties,the petition is taken up for final hearing.

2. The prayer in the present writ petition is for issuance ofa writ in the nature of mandamus thereby directing the Respondents to forebear from demolishing, dispossessing or in any manner restraining the use and enjoyment of land bearing Khasra No. 1699 (5-5) of Village Aya Nagar, Tehsil Hauz Khas, New Delhi by the Petitioners,their successors and heirs.

3. The cause ofaction for filing the present writ petition is stated 2013:DHC:7474 ]j^ to have accrued on 18.07.2011 when the Respondent No.2's officials alongwith the Kanungo and Halka Patwari attempted to demarcate the property bearing Khasra No. 1699 measuring 5 Bighas and 5 Biswas situated in the abadi ofVillage Aya Nagar on the assumption that the same belonged to the Gaon Sabha.

4. A perusal of the record shows that on 31.07.1961, a suit bearing Case No.381/58 for ejectment under Section 84 ofthe Delhi Land Reforms Act, 1954 titled Gaon Sabha Aaya Nagar Vs. Kirpa and Ors. with regard to Khasra No.1699 was dismissed vide order dated 31.07.1961 {Annexure P-1). The operative part of the order held as under:- "Issue No.3: The plaintiff has examined the patwari who stated that hefirst visited the spoton 30'^ Oct. 1956andfound the encroachment there. The defts. have examined Nanu and Kale who have stated that the defts. were in possession since 15/20 yrs. and had constructed a boundary wall around it. The case ofthe defts. is that they had grown kikar trees and spent Rs. 500/- on the house. All this certainly could not have been done in two days and hence the defts. have been in possession prior to 28"^ Oct. 1956. The defts. had been using the landfor purposes other than that mentioned in section 3(13)ofthe Actprior to 28^'^ Oct. 1956 and hence they have a right to continue in possession u/s 7(i)(b) ofthe Act. I, therefore, hold that no suitlies u/s 84ofthe Act. In view of the finding on the above issue, no finding is necessary on other issues. Order The suit is dismissed. Costs onparties. Announced. Dated 31/7/1961."

5. It is the admitted case ofthe parties that the Gaon Sabha did not challenge the aforesaid order by way of appeal or revision and, hence, the finding that Section 84 ofthe Act does not apply to the land ofthe Petitioners,attained finality. The inapplicability ofsection 84 ofthe Act in effect meant that the property in question was never to be treated as"land" as defined in the Act.

6. The Gaon Sabha in spite of the judgment and order dated 31.07.1961, however, again tried to take out proceedings for ejectment under Section 86-A of the Delhi Land Reforms Act with regard to a small portion ofthe land,i.e.,[5] Biswas out ofsaid Khasra No.1699, in occupation of Sh. Lakhmi Chand s/o Late Sh. Bheem Singh vide case No. 9/70. On 19.09.1970, this suit was also dismissed by the Revenue Assistant by holding as under:- "I have gone through the evidence on file and have seen the copy ofthe order ofthe Assistant Collector, Grade-1, Delhi. This decision is very clear and I am of the opinion that as the suit under section 84 D.L.R. Act stands dismissed, no, fresh proceedings under section 86-A under the DelhiLand Reforms Act can he instituted against the successors in interest ofthe respondent in that suit. With this observation, I reject the application of Gaon Sahha, Aya Nagar, New Delhi."

7. After hearing the parties,I am ofthe opinion thatthe provisions ofSection 84 and Section 86A ofthe Delhi Land Reforms Act do not apply to Khasra No. 1699 of Village Aya Nagar,Tehsil Hauz Khas, New Delhi, and right ofthe Respondents to invoke the provisions of Section 84 and Section 86A ofthe Act in respect ofthe land stands foreclosed in view of the orders dated 31.07.1961 and 19.09.1970 referred to hereinabove.

8. I am fortified in coming to the aforesaid decision from the decisions rendered by a Co-ordinate Bench of this Court in WP(C) No.12271/2006 Bharta Vs. Govt. ofNCTofDelhi and Ors. decided on 22.04.2009 and WP(C)No.7855/2001 Monga and Ors. Vs. Gaon Sabha Ayah Nagar and Ors. decided on 23.07.2009. The case ofthe petitioner ispara materia with the decisions ofthis Courtrendered in these two cases decided on 22.04.2009 and 23.07.2009 relating to the same village where there were similar orders of the Assistant Collector/Revenue Assistant as in the instant case dismissing the suits of the Gaon Sabha under Section 84 and 86-A of the Delhi Land Reforms Act against the land owners, who were occupying various KhasraNos.by way ofhouses priorto 28"^ October,1956. Therefore, the petitioners are entitled to be similarly treated and allowed to enjoy the properties situated in Khasra No. 1699 of Village Aya Nagar, Tehsil Hauz Khas, New Delhi without any disturbance from any quarter or threat ofdemolition.

9. In view of the aforesaid, the present writ petition is allowed with direction to the Respondents that the Petitioners shall not be dispossessed by the Respondents from land bearing Khasra No.1699 (5-5)situated in the revenue estate ofVillage AyaNagar,TehsilHauz Khas,New Delhi by invoking the provisions ofSection 84 and 86A and specifically forming subject matter of the orders dated 31.07.1961 and 19.09.1970 passed bythe Assistant Collector Grade I, Delhi and Revenue Assistant,New Delhi respectively.

10. W.P.(C)5340/2011 and CM No.10862/2011 stand disposed of in the above terms. REVA KHETRAPAL,J FEBRUARY 12,2013 sk