Full Text
JUDGMENT
24844/2024 CHANDER BHAN ..... Petitioner
Through: Mr. Mohit Kumar Sharma, Adv.
Through: Ms. Prabhsahay Kaur, Standing Counsel with Ms. Deeksha L.
Kakar, Ms. Aransha Choudhary, Ms. Pragati Singh, Advs. with Mr. Kamleshwari Pandit/Naib-Tehsildar/DDA
1. The petitioner has preferred this petition under Article 226 of the Constitution of India seeking issuance of appropriate writ, order, or directions to prohibit the respondent/Delhi Development Authority[1] from raising the boundary wall on or around the agricultural land bearing Plot No.1 measuring about 8 bigha and 7 biswas situated at Khasra No. 16 Min., Village Chirage Sumali near Khureji Khas, Shastri Park, Delhi[2], that is allegedly under the lawful possession of DDA Subject property the petitioner by virtue of GPA[3], Will and Receipt, all dated 14.06.1995 executed in favour of the petitioner by his predecessor-ininterest.
FACTUAL BACKGROUND:
2. It is claimed that one Sh. Bhima S/o Late Sh. Harbal was allotted the subject property vide allotment letter dated 01.10.1962 issued by the DDA, in lieu of the acquired land of Sh. Bhima situated in Indraprastha. Thereafter, Sh. Bhima transferred his rights, title, and interest over the subject property in favour of one Sh. Jhamman Lal S/o Late Sh. Ganga Ram executing sale document viz., GPA, Agreement to Sell and Receipt, all dated 03.07.1975, after which Sh. Jhamman Lal transferred the same to the petitioner herein vide GPA, Will, Receipt, all dated 14.06.1995.
3. It is stated that in 1991, when Sh. Jhamman Lal (predecessor in interest) was in possession of the subject property, the DDA had initiated ejectment proceedings under the Public Premises (Eviction of the Unauthorised Occupant) Act, 1971[4], against Sh. Chaina Ram S/o Late Sh. Bhima (original allottee of the said agricultural land) by way of a Show Cause Notice[5] under Section 4 of the PP Act and thereafter, an eviction order dated 20.08.1991 was passed against him by the concerned Estate Officer.
4. Aggrieved thereof, as many as 26 appeals were filed under Section 9 of the PP Act before the Appellate Authority (Learned Additional District Judge, Delhi), challenging the eviction order dated
3 General Power of Attorney PP Act 20.08.1991 passed by the Estate Officer. Out of the said 26 appeals, the appeal bearing P.P. ACT Case No. 371/95 titled “Sh. Chaina Ram v. DDA” was filed by Sh. Chaina Ram S/o Late Sh. Bhima (original allottee of the said agricultural land). The said 26 appeals were allowed by the learned Appellate Authority vide a common judgment dated 18.11.1995 and the impugned eviction order dated 20.08.1991 stood quashed.
5. The petitioner points out that during the appeal proceedings pertaining to Khasra no. 16, three witnesses were examined on behalf of the DDA and the following findings remained undisputed vide judgment dated 18.11.1995: a) The appellants or their predecessors-in-interest retained cultivating possession of the said agricultural land uninterruptedly from 1962 till the ejectment proceedings dated 1991; b) None of the appellants or their predecessors-in-interest were paid any compensation by DDA when their land situated in Indraprastha was acquired by the government; c) Plot-wise lease deeds were in fact executed by the predecessors-ininterest in respect of the said agricultural land which are available in the respective files maintained by the DDA for each khatta and plot forming part of the said agricultural land; d) The predecessors-in-interest had paid lease money in respect of the said agricultural land to the DDA up to 1983-84 and DDA had accepted such payment; e) In the show cause notice dated 30.01.1991 as well as the impugned eviction order dated 20.08.1991, it is stated that the predecessorsin-interest were sought to be evicted from only 2 bigahs of agricultural land in Khasra No.16 without mentioning any description or exact location of these 2 bigahs.
6. Thus, on the basis of the abovementioned findings as well as the allotment letter dated 01.10.1962, the learned Appellate authority held that the proposed terms and conditions on which the allotment was made to the predecessor-in-interest of the appellants in 1962 were binding on both the parties i.e. the DDA and the predecessors-ininterest. The learned Appellate authority further noted that the record of the estate officer showed that the leases of the predecessors were never cancelled by the DDA, before they served them with the show cause notice dated 30.01.1991. Even the said show case notice dated 30.01.1991 was held to be not in accordance with Section 4 of the PP Act since no description of the portion of the said agricultural land from which the predecessors were sought to be evicted was mentioned in such notice.
7. Accordingly, the learned Appellate authority quashed the impugned eviction order dated 20.08.1991, on the ground that the procedure of ejectment followed by the Estate Officer was “defective” in as much as the show cause notice dated 30.01.1991 under Section 4 of the PP Act that was served upon the predecessors of the appellants by the DDA was “not valid” and the lease of the predecessors-ininterest was not duly cancelled by the DDA before initiating the eviction proceedings.
8. It is also pleaded by the petitioner that additionally, learned Appellate Authority also held that since the predecessors-in-interest of the appellants were in peaceful and uninterrupted cultivating possession of the said agricultural land for about 30 years, they cannot be said to be in „unauthorised occupation‟ of the subject property within the meaning of Section 2(g) of the PP Act. Accordingly, the learned Appellate Authority also directed the DDA to restore possession of the said agricultural land to the appellants, if taken, during the pendency of such appeal.
9. The grievance of the petitioner is that on 21.03.2024, without any prior communication or notice to the petitioner, the officials of the respondent/DDA illegally interfered in the peaceful and lawful possession of the petitioner over the subject property by raising the boundary walls around the land adjacent to the subject as well as around the subject property.
10. In the said backdrop, the petitioner who is claiming his title and possession over the said agricultural land on the basis of a GPA, Will and Receipt all dated 14.06.1995, Letter of Allotment dated 01.10.1962, Jamabandi record of the Year 1965-66, and the judgment dated 18.11.1995 passed by the learned Appellate Authority in the proceedings under the PP Act, 1971, have filed the present petition with the following prayers: a) Pass writ, order or direction in the nature of declaration and declare the act of the Respondent No. 1, Delhi Development Authority of raising boundary wall on I around the land measuring about 8 Bigha and 7 Biswas, comprised in Kh. No. 16 min. of Village Chiragah Shumali, Delhi is illegal, void, arbitrary and unjust; b) Pass writ, order or direction thereby restraining the respondent, Delhi Development Authority for restraining the respondent, Delhi Development Authority from raising boundary wall on I around the land measuring about 8 Bigha and 7 Biswas, comprised in Kh. NO. 16 min. of Village Chiragah Shumali, Delhi and from disturbing the peaceful and settled possession of the petitioner I dispossessing the petitioner from the land measuring about 8 Bigha and 7 Biswas, comprised in Kh. No. 16 min., of Village Chiragah Shumali, Delhi. Pass such other order and orders as this Hon'ble Court may deem just fit and proper in the facts and circumstances of the case.
11. The respondent /DDA has filed an affidavit and the consistent stand of the DDA emerging from the pleadings is that: a) The petitioner has not approached this Court with clean hands since he has concealed the fact that he has instituted another writ petition bearing WP(C) No. 7135/2019 titled “Mangal & Ors. v. Union of India & Ors.” with respect to the subject land which is pending before this Court. b) The petitioner has not submitted any site plan to indicate the exact location of the alleged 8 bighas and 7 Biswas land at Khasra No.16 Min., Village Chiragah Shumale, Delhi that it is claiming title over. c) The subject land is shown as „government land‟ in the revenue record in the nature of Jamabandi for the year 1973-74 and was among the four villages that were placed at the disposal of the Delhi Improvement Trust (erstwhile respondent/DDA) vide Nazul Agreement dated 31.03.1937. Therefore, the subject land is a “public premises” and the right over such land vests solely in the Respondent/DDA. d) Furthermore, the said land is a part of Zone “O” of the MDP 2021 which are 1 in the 25 floodplains on which agricultural/residential/commercial activity is completely banned. e) The subject land is “vacant land” in the possession of DDA and the DDA is carrying on repair work of the pre-existing boundary wall at the site for the purpose of maintenance and protection from encroachment. f) The petitioners are rank encroachers who upon being evicted from Indraprastha Estate, were allowed to occupy the subject land by the DDA on humanitarian grounds for cultivation on a temporary lease-basis of only one year that expired in 1964. After 1964, the DDA never executed any license deed in favour of the petitioners. Moreover, the petitioners have failed to produce any title documents in respect of the said agricultural land which confirms that they have no title or authority to remain on the subject land and are only possessing such land in the capacity of unauthorised cultivators. Thus, they have no right to sue the true owner i.e. DDA or to be served any show cause notice by the DDA. g) The subject land was allotted to the Public Works Department vide letter dated 26.08.2019 for the public purpose of constructing a slip road for the convenience of the larger public and easement of traffic. The construction of the said project stood completed on 30.09.2020 during the pendency of the present petition and a portion of the agricultural land in question has been utilised in the said construction project. h) The subject land is located on the demarcated Yamuna floodplains where eco-restoration plantation is to be undertaken by the DDA as a part of a public project namely „Restoration and Rejuvenation of River Yamuna Project‟. Further, the hon‟ble National Green Tribunal in the case of “Manoj Misra V. Union of India & Ors[6] ” has vide judgment dated 13.01.2015 prohibited the cultivation of any edible crops/ fodder on the Yamuna floodplains in an effort to remove pollution from the River Yamuna. Furthermore, the DDA has been taking steps to remove all encroachments from the Yamuna floodplains upon the directions given by the Lt. Governor in the High Level Committee Meeting dated 14.03.2023 that has been constituted by the Hon‟ble NGT to monitor the said „Restoration and Rejuvenation of River Yamuna Project‟.
ARGUMENTS ADVANCED AT THE BAR:
12. Learned Counsel appearing for the petitioner states that the petitioner and his predecessors-in-interest have been in peaceful and authorised possession of the subject property since 1962 and brought the attention of this Court to the allotment letter dated 01.10.1962 issued by the DDA in lieu of the acquired land of Sh. Bhima situated in Indraprastha, GPA, Agreement to Sell and Receipt, all dated 03.07.1975 executed in favour of Sh. Jhamman Lal by Sh. Bhima and GPA, Will, Receipt, all dated 14.06.1995 executed in favour of the petitioner by Sh. Jhamman Lal to transfer all rights and interest over the subject property in favour of the petitioner. The learned Counsel also placed reliance on the order dated 18.11.1995 passed by the learned Appellate Authority under PP Act vitiating the ejectment proceedings moved against the petitioners in 1991 by the DDA. The Learned Counsel for the petitioner submitted that the respondent is illegally raising a boundary wall on the subject property without prior communication to the petitioner which impinges on the Right to Property of the petitioner guaranteed under Article 300A of the Constitution of India. OA No.6 of 2012 before the NGT
13. Controverting the aforesaid submissions, learned Counsel appearing for the respondent/DDA argued that the petitioner has no locus standi to file the present petition since possession of the subject property is a vacant land currently in the possession of the respondent/DDA and the boundary wall alleged to be raised is a preexisting boundary wall which is only being repaired as part of maintenance work by the respondent/DDA. The learned Counsel also contended that the subject property is nowhere in the vicinity of the said boundary wall as per the site plan of Plot No.1, Khasra No.16, Chiragah Shumali placed on record by the respondent/DDA and that even the petitioner has a misconceived understanding of the exact and correct location of Plot No.1 measuring 8 bighas 7 biswas of Khasra No.16, Chiragah Shumali that he is claiming title over. Learned Counsel further contended that the “title” documents brought on record by the petitioner do not inspire any confidence since the allotment letter dated 01.10.1962 on which the petitioner is relying clearly states that the subject property was allotted on a lease basis to the original allottee Sh. Bhima S/o Sh. Harbal. Thus, the petitioner cannot claim ownership rights on the basis of the said allotment letter dated 01.10.1962. The learned Counsel also contended that the cultivation rights over the said agricultural land were vested in the predecessor-in-interest of the petitioner for humanitarian reasons by the DDA for a temporary period of one year only and such period stood expired in 1963.
14. Learned Counsel appearing for the respondent/DDA further submitted that the present petition should be outrightly dismissed because the petitioner concealed the fact that another writ petition bearing WP (C) No. 7135/2019 titled “Mangal & Ors. v. Union of India & Ors.” seeking identical reliefs with respect to the same subject property has been instituted by the petitioner before this Court. Learned Counsel appearing for the petitioner opposed the said contention by taking the plea that the reliefs sought in the present writ petition and the above referenced writ petition may be “similar”, but they are not “identical”. Learned Counsel appearing for the respondent/DDA vehemently opposed the said argument and relied upon the Delhi High Court Rules to contend that “identical” reliefs and “similar” reliefs are not disjunct reliefs and the said argument by the learned Counsel for the petitioner must be outrightly rejected.
ANALYSIS AND DECISION:
15. I have given my thoughtful consideration to the submissions advanced by the learned counsels for the rival parties at the Bar. I have also perused the relevant record of the present case.
16. First things first, the petitioner has concealed the fact that he has instituted another Writ Petition bearing W.P. (C) No. 7135/2019 titled as “Mangal & Ors. v. Union of India & Ors.”, wherein reliefs are sought based on almost identical facts with regard to agricultural land falling in bearing Khasra No. 16/25-31 (Min), which is the same one as in the present case except for the plot number being different in the instant matter. The said fact should have been made a clean breast of in the instant petition, which fact was observed by this Court even while entertaining the instant writ in the order dated 28.03.2024.
17. Be that as it may, a bare perusal of the averments in the writ petition would show that subject property was allotted to the predecessor-in-interest Bhima S/o Mr. Harbal vide letter dated 01.10.1962 for cultivation for a year only ending by 15.06.1963, for which rent was to be deposited @ Rs. 250/-. However, no rent was ever deposited by the predecessor-in-interest and if the averment of the petitioner is believed, the subject property was sold by Bhima S/o Mr. Harbal. The predecessor-in-interest of the petitioner, namely Bhima S/o Mr. Harbal had no right, title or interest in the property in question. The plea that the subject property was allotted in lieu of land acquired at Indraprastha Estates is completely misconceived and ill conceived. There is placed on record no document that the predecessor-in-interest was owning any land at Indraprastha Estates from which he was uprooted for construction of Rajghat Power House. Merely, because name of Bhima S/o Mr. Herbal was mentioned in the list of allottees brought out by the respondent vid Serial No. 1 is no conclusive evidence that he was ever given any lease rights in respect of the subject property. By all means, the site was allotted to Mr. Bhima S/o Mr. Harbal on huminatarian grounds for cultivation and evidently, he was allowed to cultivate the subject property thereafter but without any payment of rent.
18. It would bear repetition that as per the petitioner, the subject property was sold by Mr. Bhima S/o Mr. Harbal in favour of the Mr. Jhamman Lal S/o Ganga Ram vide sale documents dated 03.07.1975 from whom the petitioner allegedly purchased the subject property by virtue of sale documents dated 14.06.1995. If the case of the petitioner is believed, it is apparent that in the earlier proceedings under Section 4 of the PP Act pursuant to SCN dated 30.01.1991 by virtue of which eviction order dated 20.08.1991 was passed, no challenge was made by Bhima S/o Mr Harbal and for that matter Jhamman Lal, which resulted in judgment delivered by the learned ADJ, Delhi under Section 9 of the PP Act dated 18.11.1995.
19. Suffice to state that the jamabandi records as also khasra girdwari for all the relevant years clearly shows that owner/landlord of the property has always been government i.e. Sarkar Daulat Madar. In fact, the copies of khasra girdwari report placed on the record by the petitioner showing position as on 15.10.1975, 21.04.1978, 13.04.1977 and lastly on 04.06.1987 do not show Bhima or for that matter Jhamman Lal as the cultivator in occupation and rather it shows Jagpat S/o Khabdu non ancestor in cultivation besides clearly showing that owner is described Sarkar Daulat Madar i.e. the government.
20. Further, the status of the plot has been clearly brought out in the affidavit of Mr. Praveen Dwivedi, Deputy Director, DDA dated 15.04.2024 in which it is deposed as under:
Agreement. Admittedly the land in question, i.e.Khasra no.16 (min) in revenue estate of Chiragah Sumali is Nazul land, i.e. government land and is a public premises. The revenue record in the nature of jamabandi, also in the column of owner the land in question has been shown as Sarkar Daulat Madar. A copy of the Jamabandi for the years 1973- 74 is annexed hereto as Annexure "A- 3".
11. A part of the entire land under said Khasra No.16 was further allotted to the Public Works Department for the public purpose of making development plan for convenience of larger public for easement of traffic by constructing road, construction of flyover and loops intersection at Shastri Park intersection and Seelampur. The work for construction of said flyover and loops also stands completed on 30.09.2020.
12. Even otherwise, no title document of ownership, containing details of the said Bhima, son of Harbal, in whose favour the land was purportedly allotted by the DDA is found under the present Writ Petition. Some purported documents in the form General Powers of Attorney. Agreements to Sell, Gift Deeds and Will deeds have been filed along with the Petition, which cannot be held to confer any right or title upon the Petitioner. The Petitioner has further failed to present any proof to substantiate his claim of being in settled possession of the subject site. Moreover, the nature of the purported documents raises highly disputed questions of fact that cannot be adjudicated in a writ proceeding and the Petition is liable to be dismissed.
13. The land in question wherein the boundary wall is being repaired is in the possession of the DDA and is vacant land. The portion of the land was handed over by the Tehsildar Nazul Section to Executive Engineer, Eastern Division 2/DDA on 05.07.2016. for maintenance and protection from encroachment. A copy of the letter dated 31.01.2017 recording the said handover on 05.07.2016, along with the site plan is annexed hereto as Annexure "A-4". The boundary wall constructed around the said vacant land was damaged from time to time by the encroachers in the vicinity and is being reconstructed.
14. The alleged plot no.1 wherein the Petitioner is claiming right is nowhere in the vicinity of the said vacant land or the boundary wall. Even otherwise, the Petitioner is a rank encroacher on the land of the Government falling on the Yamuna River Bed and now claiming right after creating unauthorized encroachment. The Petitioner has no right, title or interest in the land in question. The predecessors of the petitioner were earlier encroachers on the Government land in Inderprastha Estate. During 1962 these unauthorised encroachers were evicted from Inderprastha Estate for construction of Rajghat Power House. On humanitarian ground, the 32 cultivators/encroachers were given land for cultivation only on the basis of temporary lease for one year in Chiragha Shumali in the year 1962.
15. It is further submitted that the Yamuna River Bed on both sides of River Yamuna falls in 4 villages which are Bela, Inderpat, Chiragah Janubi and Chiragah Shumali and all the aforesaid villages were placed at the disposal of DIT (erstwhile DDA) vide Nazul Agreement dated 31-03-1937. The Respondent /DDA has the right to protect its land from any form of encroachment. Furthermore, the subject land is a part of "O Zone" of the MPD- 2021 (Master Plan of Delhi), which are the I in 25 years floodplains, on which any activity whether commercial/ residential/ agricultural is illegal and is completely banned.
16. That the Petitioner is responsible for carrying out commercial activities, agricultural activities along with livestock rearing and living on Yamuna's flood plains and their encroachment has a direct adverse impact on the river's morphology and ecology. Such activities are not only detrimental to the ecology and morphology of the Yamuna, but are directly prohibited by the Hon'ble National Green Tribunal. Moreover, the waste material from these sites is being dumped in the Yamuna River, immensely polluting and destroying the river. The dumping of waste material in the Yamuna River is completely in the teeth of the Orders of the Learned National Green Tribunal. The Respondent No. 1 /DDA has been entrusted with the affirmative duty to fiercely protect the River Yamuna, its morphology and its flood plains.”
21. In the aforesaid backdrop, learned counsel for the DDA also pointed out that the site plan/Map which has been filed by the petitioner after much dilly dally (Annexure P-9) with CM APPL. 24884/2024 is contrary to the site plan which has been filed by him in the case of “Mangal & Ors. v. UOI & Ors.” bearing W.P. (C) 7135/2019. At this stage, it would be apposite to refer to the site plan which has been filed by the petitioner. The scanned copy of which is as under:-
22. As per the petitioner, the plot No.1 is described in the shaded portion. However, it was conceded during the course of arguments that across the plot, which as per the DDA is a vacant plot of land, there is plotting done in descending order viz. 31. It may be reiterated that no site plan had been filed by the petitioner along with the petition and only upon directions given by this Court, the site plan was filed. At this juncture, it would be apposite to refer to the site plan filed on record by the DDA prepared on 05.07.2016 along with their affidavit dated 15.04.2024. The scanned copy of which is as under:-
23. Ms. Prabhsahay Kaur, learned standing Counsel for the DDA reiterates that the subject property shown in yellow in the site plan on the extreme left is Khasra No. 16 Min, is a vacant plot of land and across the road, there is plot No. 29. It was pointed out that the site plan was prepared at the time of handing over of the possession by the Tehsildar Nazul Section to the Executive Engineer, Eastern Division- 2/DDA on 05.07.2016 as deposed vide paragraph (03) of the affidavit dated 15.04.2024. This position is made clear from the photographs placed on the record by the DDA on 05.11.2020 which evidently show a vacant plot of land having boundary wall upto the height of 3 to 4 feet, which the defendant is trying to repair/rebuilt in order to prevent it from being encroached.
24. In view of the above, while providing that the reasons given in the aforesaid case may also be read as part and parcel of this judgment, the subject property is admittedly vacant land and there exists no construction. Thus, the plea of the petitioner that the wall is being constructed appears to be absolutely wrong and misleading inasmuch as the photographs placed on the record would show that a boundary wall upto the height of 3-4 feet has always existed. The plea of the petitioner that the possession of the subject property had not been taken prior or pursuant to the judgment dated 18.11.1995 is clearly belied from the photographs placed on the record as also the documentation. The crux of the matter is that the petitioner has failed to show as to where the property is located and what are the measurements or dimensions of the plot in question.
25. The above discussion brings to the fore that the petitioner is unable to show the existence of any legal right, title or interest in the subject property. He is also guilty of concealment and misrepresentation of facts, taking self contradictory stands in the present writ as also in another writ bearing W.P. (C) 7135/2019 titled as “Mangal & Ors. v. UOI & Ors.”. There is no denying the fact that the subject property falls in „Zone-O‟ of the Yamuna floodplains. This Court has also given detailed reasons in the writ petition bearing W.P. (C) 7135/2019 titled as “Mangal & Ors. v. UOI & Ors.”, which is also being disposed of vide a separate judgment today, setting out the chronological history of directions which have been passed by the Supreme Court, NGT, as well as this Court with regard to removal of unauthorized constructions and encroachments over the Yamuna riverbed, which is required in larger public interest.
26. In view of the foregoing discussion, the present writ petition is dismissed. The petitioner is burdened with costs of Rs. 25,000/- to be deposited with the Registrar General of High Court of Delhi, New Delhi, which shall be deposited within a month from today and be paid over to the respondent/DDA.
DHARMESH SHARMA, J. JULY 16, 2024