Bharat Bhusan Arora & Ors. v. Govt. of NCT of Delhi & Anr.

1. Vide impugned order dated 28.2.2011, the learned Single Judge has held that the appellants i.e. the writ petitioners before the learned Single Judge were encroachers on the subject land in Andheria More, from where they were evicted when demolitions were effected on 22nd July and 17th August, 2000.

2. This finding of fact has been questioned before us by drawing our attention to the pleadings in the writ petition wherein, vide para 3 it is stated that the writ petitioners were paying rent to the Gram Sabha and from said pleading it is sought to be urged that the petitioners were tenants. Additionally, reference is sought to be made to certain receipts executed by the Gram Pradhan showing receipt of money. LPA 623/2011 2011:DHC:16763-DB

3. We would highlight that as per the Delhi Panchayat Raj Act 1954, a Gram Sabha cannot sell or let out Gram Sabha land without the permission of the Secretary Panchayat.

4. There are no pleadings in the writ petition as regards the date when the Gram Sabha passed a resolution authorizing the Pradhan to let out Gram Sabha property. There are no pleadings as to the Secretary Panchayat according concurrence ) to the resolution of the Gram Sabha. Mere pleading that the writ petitioners were paying rent is neither here nor there. It is settled law that pleadings in a writ petition· are pleadings of fact, made good with reference to pleading of evidence followed by pleadings with respect to legal issues which arise.

5. With respect to the other pleas sought to be urged, relevant facts to be noted are that the subject lands admittedly vest in the Gram Sabha of village Chatarpur and were found to be encroached upon; requiring expansion of Mehrauli-Gurgaon Road, the encroachments were removed firstly on 22nd july, 2000 and the remainder on 17th August, 2000. Undisputably, prior to the encroachments being removed, proceedings were initiated by issuance of notices under Section 86A of the Delhi Land Reforms Act 1954 requiring the writ petitioners to show cause why should they not be ejected from Gaon Sabha land and in response they were taking the plea of bar of limitation for ejectment, being 3 years and were urging that they had become bhoomidars of the land, a plea which negates the stand of being tenants.

6. In respect of the plea by way of defence that the writ petitioners have become bhoomidars, we would highlight a misconception in Delhi. Under the Delhi Land Reforms Act 1954 a person in adverse cultivatory possession upon not being ejected from the land by the recorded bhoomidar acquires a bhoomidari right by prescription and the reason of the law is that the tiller of the land must get the possessory rights. Thus, a wrongful possession, which is not a cultivatory possession, would not create any bhoomidari rights. The writ petitioners admit that they were carrying on business by erecting shops on the subject land.

7. We may note that the writ petition filed by the petitioner questioning their ejectment being W.P.(C} No.5039/2000 was dismissed on 4th March 2002 when petitioners stated that they have a right to be considered for alternative plots to be allotted and the learned Single Judge held that if alternative plots were not allotted, petitioners could raise a grievance on the said count.

8. No alternative plot being allotted, petitioners filed W.P.(C} No.212/2007 which they withdrew by stating that some other writ petition filed by them on the same cause was pending. None being pending, they sought a revival of W.P.(C} No.212/2007. The revival was declined when the learned Single Judge noted that the writ petitioners were once again questioning the demolition of their shops and they being ejected from the subject lands and that they were not raising any grievance pertaining to alternate plots not being offered to them.

9. Thereafter, W.P.(C) No.3616/2008 and two more writ petitions were filed, all of which have been dismissed by the impugned order in which writ petitions we find that the action of the respondents in resuming possession of the land on which unauthorized shops were constructed have been questioned. Compensation has been prayed for. The prayers in the writ petition read as under:- "(i) Issue a writ, order or direction in the nature of Certiorari quashing the Orders and calling the acts of demolition of petitioners shops as illegal.

(ii) Issue a writ of mandamus in the nature of directing respondents therein, to respond, the violations of Court Orders, committed by them, in "status as to the possession".

(iii) Issue the writ of mandamus directing therein to the respondents for the removal of illegal construction, built up in violation of the order for "Status quo as to possession" passed by this Hon'ble Court.

(iv) Issue a writ, order or direction in the nature of mandamus directing the respondents not to stop them for doing their business activity from the land portions where they have been carrying their work till 21.7.2009, nor do any interference in this regard.

(v) Issue a writ, order or directions in the nature of mandamus directing the respondents not to take possession of the land portions of the petitioner where their shops were situated till the same were illegally demolished. _)

(vi) Issue a writ order or directions in the nature of mandamus directing the respondents, to immediately develop the shops of the petitioners and make it habitable so that petitioners can do their business smoothly.

(vii) Issue any order or directions calling upon the respondents to pay compensation to the petitioners for the loss they have suffered due to the illegal act of demolition of their shops on 22.7.2000 and also on 17.8.2000; and