Full Text
HIGH COURT OF DELHI
Date of Decision: 20 th January, 2023
3156/2022, CM APPL. 41849/2022, CM APPL. 2901/2023
NORTHERN INDIA PAINT COLOR AND VARNISH CO. LLP ..... Petitioner
Through: Mr. Arvind K. Nigam, Sr. Adv., Mr. Rajashekhar Rao, Sr. Adv. with Mr. Harshavardhan Kotla, Mr. Divyank Yadav, Mr. Harshil Wason, Mr. Raghav Kohli, Advocates
Through: Ms. Monika Arora, CGSC with Mr. Yash Tyagi, Advocate Mr. Varun Talwar, Law officer for
UOI (M:8910537411)
Mr. Sameer Vashisht, ASC(C)GNCTD with Ms. Sanjana Nangia, Advocate for
R-2(M:8287936603)
MINI PUSHKARNA, J. (ORAL):
JUDGMENT
1. With the consent of the parties, the matter is taken for final disposal.
2. The present writ petition has been filed challenging the restraint order dated 28.08.2022 issued by respondent no. 2 thereby restraining the petitioner from carrying on construction work on the property admeasuring 6325 sq. yds., situated at No. 1, Canal Road, Vijay Nagar, Delhi-110009. The said restrainment order was issued on the basis that the said property may be enemy property and thus, verification of documents/revenue records and demarcation of the property was required. The restrainment dated 28.08.2020 is reproduced as below:- “ RESTRAINMENT ORDER Whereas, during the visit of Tehsildar along with Patwari and Field Kanungo, it was found that a construction is going on at 1 Canal Road, Vijay Nagar, Delhi i.e. Estate of Mst Ammurd Hussain and Ors. Whereas, during the scrutiny of Conveyance Deed it was found that Khasra number is not mentioned in the deed. And whereas it has been apprehended by the Ministry of Home Affairs letter dated 24.08.2020 that the said property may be enemy property and thus verification of documents/revenue records, demarcation of the property & verification of the antecedents of the original owners is required and till that time construction work shall be stopped. Therefore, you are hereby restrained from doing any construction work with immediate effect failing which action under various provision of applicable laws will be initiated against you. Sd/- (RAHUL SAINI DANICS) SDM/CHAIRMAN STF MODEL TOWN, DELHI”
3. It is the case of the petitioner that the said restraint order is completely illegal and arbitrary as the petitioner is the exclusive owner in possession of the said property by virtue of deed of conveyance dated 13.02.1990 executed by the President of India, in favour of the petitioner pursuant to order dated 14.12.1989 passed by Supreme Court. Thus, by way of the present petition, the petitioner also challenged the notice dated 28.10.2020 issued by respondent NO. 2 calling for demarcation of the said property. The petitioner has further sought for declaration that the said property is not enemy property.
4. The facts as elucidated in the writ petition are as follows:- In 1947, during the partition, the petitioner was forced to leave behind its business including its factories and migrate from the present day Pakistan to Delhi. As per the prevailing policy, the petitioner applied to the Custodian of Evacuee Property for allotment of a business accommodation for setting up a paint factory. For this purpose, the petitioner made an application dated 31.12.1947 for allotment of business accommodation, which letter has been annexed as Annexure- P[5] with the present writ petition.
5. In February1948, against the aforesaid application, a factory known as “Ismail Lace Mills” situated on the property in question, was allotted to the petitioner. Subsequently, the Custodian of Evacuee Property, vide letter dated 12.05.1948, confirmed allotment of factory known as “Ismail Lace Mills” situated at the property in question, with all machinery, equipment and other movable property to the petitioner. The letter dated 12.05.1948 as issued by the Custodian of Evacuee Property is reproduced as below:- “No.DC/IV/48 Government of India Ministry of Relief and Rehabilitation Office of the Custodian of Evacuee Property „P‟ Block Raj Niwas Road, New Delhi Dated the 12th May, 1948 (Illegible) Subject: Allotment of Ismail Lace Mills, (Illegible). Whereas, the Northern India Paint Colour & VarnisH Co. Ltd. have fulfilled the conditions laid down in the letter No.DC/IV/A dated the 10th March, 1948, address to the Assistant Custodian Industrial Section is hereby required to effect delivery of possession of Factory/Machines /Industrial premises as Ismail Lace Mills, Partner with all machinery, equipment and other movables property kept therein to the above named allottee and report delivery of the possession having been given, signed by the lessee above named and attested by the Assistant Custodian to this office. If necessary, the Enforcement Section will help the Assistant Custodian not the allottee in the transfer of the possession to the allottee of the property in accordance with procedure prescribed under law. Sd/- U.S. Dikshit Custodian of Evacuee Property”
6. Pursuant to the above, lease deed dated 28.06.1948 was executed in favour of the petitioner by the Custodian of Evacuee Property. It is the case of the petitioner that it has been in uninterrupted and exclusive possession of the said property since
1948.
7. After enactment of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, the petitioner being a displaced person, applied for conveyance of the said property. The respondent no. 1 declined to convey the said property to the petitioner on the ground that the value of the property exceeded Rs. 50,000/- and as such, was not eligible for allotment. The petitioner challenged the same by initiating litigation, which finally culminated in Civil Appeal NO. 3099/1989 before Supreme Court.
8. By order dated 27.07.1989, Supreme Court directed the Union of India to execute and register a proper deed of sale in favour of the petitioner herein upon payment of the value of the property in question as per valuation of the government. Order dated 27.07.1989 passed by Supreme Court in Civil Appeal no. 3099/1989 is reproduced as below:- “ ORDER Special Leave is granted. Heard Learned Counsel for both the parties. It appears that the appellant has been in possession of the disputed property, which is a parcel of land, since 1947 by constructing a structure thereon. The Government has valued the disputed property at Rs.2,02,400/- and intends to sell the same at that price. In our opinion, as the appellant has been in possession of the disputed property for more than 40 years, it should be sold to the appellant at the said price, that is, Rs.2,02,400/-. The said sum of Rs.2,02,400/- shall be paid by the appellant to the Union of India within two months from today and upon such payment, Union of India shall execute and register a proper deed of sale in favour of the appellant in respect of the disputed property. The appeal is disposed of as above.”
9. Subsequently, vide order dated 14.12.1989, Supreme Court held that the petitioner herein was entitled to allotment and directed that the title of the property shall be conveyed to the petitioner. Order dated 14.12.1989 as passed by Supreme Court is reproduced as below:- “ ORDER The appellant, a Private Limited Company of which one N.K. Sehgal is the Managing Director is a displaced person within the meaning of Displaced Persons (Compensation and Rehabilitation) Act, 1954. The property in dispute is located within Delhi area. After coming over to India following the partition, the appellant came into possession of the property, under a lease deed in 1948 obtained from the appropriate authority paying Rs.50/- as rental per month. The question of allotment of the property in terms of the scheme of the act with the appellant came up for consideration in due course and keeping the provision of Rule 22 of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955, it became necessary to determine if the property was allotted to the appellant under Rule 22 (C). Since it was an Industrial concern, as required by the rule the valuation was not to exceed to Rs.50,000/-. The property was then valued at Rs.56,034/- which the appellant did not accept. Ultimately under orders of the High Court (Illegible) the present market value was fixed at Rs.2,02,400/-. It is not disputed before us by counsel appearing for the Union of India that the valuation of 1955 when the Rule came into force has to be adopted. In fact the earlier valuation of Rs.56,034/- had been made on the basis of rules prevailing in 1955, which the appellant had been challenging. Counsel for the Union of India does not press upon to accept the later valuation. We are of the view that different alternatives are available for fixing the valuation within the statutory guidelines. In the instant case the fact that rental of Rs.600/- per year had been fixed for the property in 1948 by the appropriate authority and the appellant has remained in possession for four decades and raised constructions thereon are relevant and special features to be taken into account. Calculated on the basis of rental income by adopting a 20 time basis for capitalization the valuation would be Rs.12,000/-. Taking an overall picture of the matter and keeping the two valuations Rs.12,000/- and Rs.56,034/- in view we are prepared in the facts and circumstances of the case to fix the valuation within the limit of Rs.50,000/-. In these peculiar facts we hold that the property is allotable to him. Before this Court the appellant had agreed to pay Rs.2,02,400/- for the property as would appear from the order dated July, 27, 1999. In fact on that day by consent of parties, the Court had directed that the property should be conveyed to the appellant and a regular deed should be registered for conveyance of title on payment of that amount. That order has been recalled on the representation of the Union of India that while making the order Rules 22 and 21 of the 1955 Rules had not been kept in view. Though we come to the conclusion that the land is allottable to the appellant in terms of the Rules. In view of the fact that the appellant had already agreed before this Court to pay a sum of Rs.2,02,400/- for this property, we direct that the title of the property shall be conveyed to the appellant on payment of that amount i.e. Rs.2,02,400/- within two months from today. This decision has been taken in the peculiar facts appearing on the record and may not be treated as a precedent. There shall be no order for costs.”
10. Pursuant to aforesaid order dated 14.12.1989 passed by Supreme Court, a deed of conveyance dated 13.02.1990 was executed by the President of India in favour of the petitioner. Thus, it is the case of the petitioner that it became the absolute and exclusive owner of the property in question.
11. Out of the 6325 sq. yds. of the property in question, the Flood Control Department of respondent no. 2 had taken over 2500 sq. yds. of the said property. The petitioner, thus, approached the Supreme Court again, which appointed a District Judge, Delhi to conduct a detailed inquiry and demarcate the property. The District Judge after a detailed inquiry submitted an Inspection Report dated 06.01.1998, along with a detailed report dated 06.01.1998 and a detailed layout plan. The learned District Judge by his report dated 06.01.1998 noted that the petitioner might have lost part of land by encroachments or otherwise, land measuring 318.66 sq. yards. Thus, by order dated 09.02.1988, the Supreme Court disposed of the contempt petition, as filed on behalf of the petitioner herein, with liberty to petitioner to take appropriate remedies.
12. Thereafter, the petitioner filed a suit for possession, being Civil suit no. 218/2002, which was subsequently renumbered as Suit NO. 213/2004. The said suit was filed against MCD, Land and Building Department, GNCTD and MTNL, who as per the petitioner were in illegal possession of the portion admeasuring 318.66 Sq. yards. Vide final judgment and decree dated 29.02.2008, the said civil suit was decreed in favour of the petitioner and it was observed that the petitioner was the rightful owner of the property in question. Thus, decree of possession was passed in favour of the petitioner herein in respect of 317.10 sq. yds. of land in respect of the property in question, i.e. property bearing No. 1, Canal Road, Vijay Nagar, Double Storey, Delhi – 110009. Possession of the remaining portions admeasuring 318.66 Sq. yds. of the land in question, was handed over to the petitioner pursuant to an execution petition filed on behalf of the petitioner.
13. Thus, it is submitted by Mr. Arvind Nigam, Sr. Advocate appearing for the petitioner, that it is in these circumstances that the petitioner became the exclusive owner in possession of the property in question and there is no question of the said property being an enemy property.
14. It is submitted on behalf of the petitioner that the petitioner subsequently got the user of the land changed from industrial to group housing and submitted plans for construction of group housing society on the land in question, for which purpose the Municipal Corporation of Delhi (MCD) has sanctioned the plan on 28.09.2018. While the construction work was going on, the petitioner received the restraint order dated 28.08.2020, thereby restraining the petitioner from carrying on construction work on the basis that it has been apprehended by the Government that the property may be enemy property. Despite several representations made on behalf of the petitioner, respondents did not withdraw the restraint order. Subsequently, respondent No.2 issued a notice dated 28.10.2020 for demarcation to the petitioner, directing it to be present for joint survey cum demarcation for property No. 1, 2, 5 and 7, Canal Road, Vijay Nagar, Delhi – 110009.
15. In view of the aforesaid, the present petition was filed with the following prayers: “i. Declare that the said property is not enemy property and that it does not fall within the ambit of the Enemy Property Act, 1968; ii. Issue a writ, order or direction in the nature of certiorari quashing the order dated 28.08.2020 issued by the Respondent No.2 restraining the Petitioner from carrying on construction work on the property; iii. Issue a writ, order or direction in the nature of certiorari quashing the notice dated 28.10.2020 issued by the Respondent No.2 calling for demarcation of the subject property; iv. Grant appropriate compensation to the Petitioner for lossess it has suffered on account of the wholly illegal Retrain Order dated 28.08.2020; and v. Pass any other order(s) that this Hon‟ble Court may deem fit.”
16. When the present petition was listed for hearing on 04.11.2020, this Court directed demarcation of the property in question as follows: “………
9. The property is being constructed in terms of the plan sanctioned by the Municipal Corporation, once the location of the land was clearly demarcated by the conveyance deed. At the site, it has been verified by the Revenue that the lands in exclusive possession of the petitioner are Khasra nos. 690/375 min (1-15), 69/375 min (2-9-1/2), 688/608/376 (0-2), 689/608/376 min, 692/213 (0-10) and 693/213/2/3/1 (0-8). The Corporation having satisfied itself apropos the antecedents, lawful possession and location of the lands and claim of the petitioner, sanctioned layout/building plan. Therefore, there was ex facie no room for doubt which could warrant the issuance of the aforesaid impugned letter dated 28.08.2020. Evidently, the said letter has been issued on a communication from R-1, only on the suspicion that No. 1, Canal Road, may be enemy property. Before issuing the said order, R-2 ought to have verified the records, as discussed hereinabove, and R-2 sought further information from R-1. All-the-more, because No. 1, Canal Road had been transferred to the petitioner by the GOI itself and it is the adjoining property which has been classified as enemy property. As noted above, the Corporation's letter of 10.04.2012 refers to property no.2. Canal Road, as enemy property and not the petitioner's property, which was lawfully conveyed to it.
10. The leamed counsel for the petitioner refers to an extract from the website of the Custodian of Enemy Properties, and submits that serial nos. 446, 447 and 448 therein are listed as 'enemy properties'. He submits that the petitioner is not undertaking construction on any land other than what has been identified and conveyed to it.
11. In view of the above, the impugned letter dated 28.08.2020 shall be kept in abeyance till the next date.
12. The construction shall be carried out, without prejudice to the rights and contentions of the parties and it would be subject to the outcome of the writ petition.
13. It is for the Corporation to ensure that the construction is carried out in terms of the approved building plan.
14. The learned counsel for the petitioner submits that demarcation, which is scheduled for the day after tomorrow, may be deferred by a fortnight since the relevant officials/representatives of the petitioner are indisposed on account of the pandemic. In the circumstances, let the respondents accommodate the petitioner.
15. The demarcation exercise shall be carried out only with reference to the earlier demarcation report, which was conducted by the learned District Judge, Delhi, as per the directions of the Supreme Court, within a period of 8 weeks from today. Copy of the same shall be made available to the petitioner, through counsel as well. ………”
17. Against the aforesaid order dated 04.11.2020 passed in the present writ petition, an appeal came to be filed on behalf of Union of India, being LPA No. 81/2021. The aforesaid appeal was disposed of by Division Bench vide its order dated 08.04.2021, as follows: “………..
5. This appeal has been preferred against the interlocutory order dated 04.11.2020 passed by the learned Single Judge in W.P.(C) No.8667/2020.
5.1. There are two directions contained in the order qua which grievance has been expressed by the appellant. The first direction concerns the construction to be carried out on the subject property, which is described as, Plot no. 1, Canal Road, Vijay Nagar, Delhi-110009, admeasuring 6325 square yards (“subject property”). The second direction concerns demarcation to be carried out qua the subject property albeit “… only with reference to the earlier demarcation report, which was conducted by the learned District Judge, Delhi, as per the directions of the Supreme Court…”.
6. We have heard learned counsel for the parties for a considerable period of time. Counsels for the parties are agreed that the appeal can be disposed of with the following directions: - “(i) The joint demarcation of the subject property will be carried out bearing in mind the inquiry report of the then District and Sessions Judge, Mr. K.P. Verma, which we are told, is dated 06.01.1998, which, in turn, was submitted to the Supreme Court pursuant to its order dated 03.11.1997.
(ii) The demarcation will be carried out in the presence of the authorized representative of the appellant [i.e., the Custodian of Evacuee Property], representatives of the revenue authorities and the representative of respondent no.1. This exercise will be carried out under the supervision of the District Magistrate, North (Delhi).
(iii) Respondent no.1 will continue with the construction being carried out on the subject property, with the caveat, which is, in case it is found that the construction is being carried out by respondent no.1 over an area that was not conveyed to it via the conveyance deed dated 13.02.1990, then, it shall take steps to demolish the same. An undertaking, in that behalf, will be filed by respondent no.1 via an affidavit of the Partner of respondent no.1. The said affidavit will be filed within five days from today. The affidavit will be filed before the learned Single Judge. A copy of the same will be furnished to the counsel for the appellant as well as the counsel appearing for GNCTD.
(iv) The report of the joint demarcation will be placed before the learned Single Judge. The learned Single Judge, upon receiving the report, will pass an appropriate order in the proceedings pending before him.
(v) Needless to say, the joint demarcation exercise will be conducted at the earliest, though, not later than six weeks from the date of receipt of a copy of the order.
7. The impugned order will stand modified to the extent indicated above. The appeal is disposed of in the aforesaid terms. Consequently, all pending applications shall stand closed.”
18. Thus, Division Bench of this Court disposed of the appeal with direction for joint demarcation of the subject property, bearing in mind the inquiry report dated 06.01.1998, submitted by the then District and Sessions Judge. It was further directed that the demarcation will be carried out in the presence of all the parties including the petitioner herein, as well as Custodian of Evacuee Property and revenue authorities. The said demarcation was directed to be carried out under the supervision of District Magistrate, North (Delhi) and was directed to be placed before this Court for passing appropriate orders.
19. Pursuant to the aforesaid order dated 08.04.2021 passed by Division Bench in LPA No. 81/2021, a Status Report of SDM (Model Town) dated 22.12.2021 came to be filed, which reads as under: “ Status Report DEMARCATION OF LAND IN RESPECT OF IMMOVABLE PROPERTY I.E. ESTATE OF MST.
AMMURD HUSSAIN AND ORS.) OF MST.
KHADIJA BI AND MST.
MASHA ALLAH, PAKISTANI NATIONAL VESTED IN THE CUSTODIAN OF ENEMY PROPERTY (AMENDMENT AND VALIDATION) ACT, 2017 AND RULES THEREUNDER. With reference to letter No. CEPI 08-00-07(OLD)/08- 00-05(NEW)/1633-a DT. 25.10.2021 of CEPI on the subject noted above and as per telephonic discussions with A.C. (CEPI), it is submitted that to carry out the demarcation of the abovesaid land, the field staff i.e. Kgo. and Patwari of Sub-Division Model Town has stated that the following documents are must (page 30/N):
1. Field Book of Vill. RajpurChawni.
2. Masavi of Vill. RajpurChawni. The above documents are not available in this Sub Division. The abovesaid documents are also not available in the Record Room, Tehsil Building, Tis Hzari, Delhi as reported by Kgo. and Patwari (Page 27/N para 115). Further the SadarKnungo, Tis Hazari has provided certified copy of Masavi, but the same is not legible. In the absence of the above documents it is not possible to carry out the demarcation. Earlier, A team consisting of Tehsildar (MT), Kanungo, Patwari from Revenue Deptt. And Sh. Abhishek Aggarwal from CEPI for joint demarcation visited the site on 13.7.2021. Sh. Gaurav Chaudhary of Northern India Paints was also present. Demarcation process could not be completed due to lack of documents. During the process it was decided to get the revenue records available in urdu to get translated in English/hindi to get clear picture about ownership. Accordingly, vide this office letter dated 6.9.2021, CEPI was requested to get the revenue records translate from Urdu in Hindi. Translated copy of the revenue record has been received from CEPI vide letter No. CEPI 08-00-07(OLD)/08-00-05(NEW)/1633-A dated 25.10.2021 for further necessary action. Patwari and Kanungo have gone through the translated record. As per the said record, according to Jamabandi year 1967-68 of Village Rajpur Chawni Khewat No. 136/93 Khatoni No. 142 Intekal No. 919 Khasra No. 693/213/4/3/2, the ownership of the land 17- 08 biswa is recorded in the name of Md. Shavir, Khalil ur Rehman, Habiib ur Rehman equal share 21/32 share, Smt. Akhlakun Nisha, Jamurud Hussair equal share 7/32, Smt. Iyana Bi Vidow 1/8 share, caste Arine successor of Md. Ismail. After that as per Intekal No. 983 Khasra NO. 693/213/4/3/2/2 (17-08 biswa), out of this land according to Khasra No. 693/213/4/3/2/1 area 4-15 Biswa was transferred to Land & Housing Deptt. Therefore, the remaining area 12-13 biswa remained in the names of the above mentioned owners. As per Intekal No. 1081 inheritance of Smt. Iyana Bi 1/8 share, Md. Shavir, Khalil ur Rehman and Habib ur rehman sons equal share of 6 part, Smt. Khadija Bi, Smt. Jamrud Hussair Smt. Akhlakun Nisha and Smt. Masha Allah, daughters of Md. Ismail 4 parts out of 1/8 share of remaining 7/8 share recorded accordingly. As per Intekal No. 1082, Smt. Khadija Bi and Masha Allah daughters of Md. Ismail out of 1/40 share released their share ¼ to Md. Shabir, Khalil ur Rehman and Habib ur Rehman sons of Md. Ismail through Release Deed. As per Intekal No. 1115 the above owners out of Khasra No. 693/213/4/3/2/2 share of 0-4 biswa as per khasra No. 693/213/4/3/2/1 made a Gift Deed in the name of Sh. Harvansh Lal Handa S/O Nand Lal R/O H. No. 2/6, Kanal Road, Vijay Nagar, Double Storey, Delhi which is recorded in his name. Thus as per translated revenue records there is no mention of ownership of CEPI as such in these khasra nos. Further, as area is densely populated and urbanized, there is no survey stone/reference stone available in this area/nearby area which is basic requirement for demarcation. Thus, on the basis of records available with this office and lack of reference stones it is not feasible to carry out demarcation per se. However, measurement as per District Judge report 1996 can be carried out by this office in compliance of High Court directions. Further, to get some clear picture of the land in question, the owners of the surrounding properties i.e. Property No.1, 2, 5 and 7, Kanal Road, Vijay Nagar, Delhi have been asked to submit the complete chain of their ownership documents in respect of these properties. The same will be examined & accordingly status report will be submitted to CEPI Office.
RAHUL SAINI (SDM MODEL TOWN)”
20. After the filing of the aforesaid status report by SDM (Model Town), the said report was considered by this Court and directions were issued to the District Magistrate, North to ensure that the exercise of demarcation in accordance with the directions framed by the Court in the present proceedings in order dated 04.11.2020 as well as order passed in LPA No. 81/2021, be concluded at the earliest. Thus, order dated 19.01.2022 came to be passed by this Court as follows: “………...
5. The dispute which is raised by the Custodian in these proceedings is based on the allegation that the petitioner has encroached upon and is raising construction over land adjacent to that which was conveyed to it and which vests in the Custodian. It is further contended that the report of District Judge which came to be accepted by the Supreme Court was one which came to be drawn without any actual demarcation on the basis of revenue records. The contention in essence is that an actual or physical demarcation exercise was not undertaken.
6. Having considered the submissions addressed by respective sides, this Court notes that the directions of 4 November, 2020 which have been substantially upheld in the appeal and modified to the extent noticed above, does command the respondents to undertake a demarcation bearing in mind the report of the District Judge which was submitted in proceedings before the Supreme Court. Admittedly, that direction is yet to be complied with by the respondents. From the Status Report which has been filed in these proceedings it further transpires that the team which was constituted to undertake demarcation found that relevant revenue documents such as the field book and masavi were not traceable. This report indicates that the aforesaid documents were neither available in the Sub-Division nor in the archival record room situate in Tis Hazari, Delhi. The SDM, however has, notwithstanding the above, stated that measurements as per the District Judge‟s report can still be carried out by his office in compliance with the directions issued by the Court.
7. Presently, and at this stage, the principal issue which arises for consideration is whether the petitioner has in fact encroached and come to possess land in excess of 6325 sq. yards which was the total area which was conveyed to it way back in 1990. It would also have to be additionally verified whether the constructions are being raised only over the area which was made over to the petitioner at that time. It is this exercise which must be concluded at the outset and the directions issued by the Court in these proceedings complied with. This issue assumes significance bearing in mind the restraints imposed in terms of the impugned order and the corresponding imperative to demarcate the area which was conveyed to the petitioner.
8. In view of the aforesaid, the District Magistrate (North) is hereby commanded to ensure that the exercise of demarcation in accordance with the directions framed by the Court on 4 November 2020 as well as the order passed on LPA No. 81/2021 is concluded in accordance with law with due notice to all concerned parties including the Custodian. That exercise of demarcation may be concluded within a period of eight weeks from today. The District Magistrate (North) shall also endeavour to instruct the concerned officials to undertake a renewed exercise to search out the relevant revenue records and to ensure that the exercise of demarcation with respect to identification of 6325 sq. yards is concluded bearing in mind the report of the District Judge which was taken on board by the Supreme Court. ……….”
21. Subsequently, a statement came to be made on behalf of respondent No. 2, as recorded in the order dated 29.03.2022, that demarcation exercise had been concluded. It was submitted on behalf of respondent No.2 that the petitioner had not made any unauthorized construction and the construction effected by the petitioner was only within an area of 6152 sq. yds.
22. Thus, a second status report was filed on behalf of SDM (Model Town) on 29.03.2022, which reads as follows: “REPORT REGARDING MEASUREMENT IN RESPECT OF PROPERTY NO. 1,2,[5] AND 7, CANAL ROAD, VIJAY NAGAR, DELHI. As per directions of Honorable High Court vide its orders dated January 19/2022 para 8 "... undertake a renewed exercise to search out the relevant revenue record and to ensure that the exercise of demarcation with respect to identification of 6325 square yards is concluded bearing in mind the report of the District Judge which was taken on board by the Supreme Court." As per directions letter was again sent on 17.02.2022 (Annexure-I) to Central Record Room, Tis hazari court complex for providing information regarding Field Book of Village Rajpur Chhawni. In response reply was received in this office on 08.03.2022 (Annexure-II) mentioning "The Field Book of Village Rajpur Chhawni is not consigned/available in the Central Record Room, Tis Hazari Court Complex". Further, As per the orders of Hon'ble High Court dt. 19.1.2022 and subsequent directions of worthy DM (North), measurement process in respect of property NO. 1,2,[5] and 7, Canal Road, Vijay Nagar, Delhi was initiated. Accordingly Notice bearing No. 1063-68 dated 05.3.2022 (Annexure-III) was issued to all concerned parties to join for the process of measurement on 9.3.2022 at 11.30 AM. On 9.3.2022 at about 11.30 am, following concerned were present at the site to carry out the measurement process to be done by the Private TSM Surveyor M/s. Surya Measurement, Kaushik Enclave, Burari, Delhi - 84:
1. Sh. Abhishek Aggarwal (ACP), CEPI.
2. Sh. Varun Talwar (Law Officer),CEPI
3. Sh. Sumit Bhargava,Advocate-Office Asstt., CEPI
4. Sh. Rajeev Prajapati, Surveyor, CEPI
5. Sh. Sunil Kumar, Tehsildar (Model Town)
6. Sh. Parveen Kumar, Representative from DM (North) Office.
7. Sh. Bobby TSM Surveyor M/s. Surya Measurement, B-14, Gali No.17, Kaushik enclave, Burari, Delhi -84
8. Sh. Suraj Bhan, Kanungo, Sub Division Model Town.
9. Sh. Sandeep Kadyan, Patwari, Sub Division MT
10. Property owners of property No. 1,2,[5] and 7. The measurement process was carried out successfully on 9.3.2022 after a long process in the presence of all concerned. It is also pertinent to mention that as per the directions of Hon'ble High Court of Delhi vide LPA 81/2021 dated 8.4.2021 that the demarcation/measurement of the subject property will be carried out bearing in mind the inquiry report of the then District and Session Judge, Mr. K.P. Verma, a copy of map certified by Distt. & Session Judge was handed over to TSM Surveyor on 8.3.2022. On 23.3.2022, measurement report (Annexure-IV) has been received from the private TSM surveyor Kanungo of this office prepared report on the basis measurement report received from surveyor and ownership documents available in the file. Below are the findings:- Property No. Name of owner Area as per ownership documents (in Sq. yards) Area as per Measurement report of TSM Survey (in Sq. yards) Possession of area in excess/shortfall wrt ownership document (in Sq. yards) Prop.No.1 Canal Road, Vijay Nagar, Delhi Northern India Paints Colour and Varnish Co. LLP 6325 6152.82 172.17 (Shortfall) Prop. No.1 Vijay Nagar Delhi A.M.C Pvt. Ltd. 5313 6646.[6] 1333.[6] (Excess) Vacant Land adjacent to A.M.C Pvt. Ltd. Nil 523.37 Nil Property no. 2,5,[7] Vijay Nagar, Delhi Sawan Kripal Roohani Missi 11490 11299.17 190.83 Harbansh Lal Handa 600 569.[3] 30.[7] The Map submitted along with the report of Sh. KK Verma District Judge has Hanuman Mandir and road in the North East of the Subject property of M/s Northern India Paint Colour and Varnish Company LLP, Road and Najafgarh Drain in the Sourth East, Road and Other Factory in North West. The same were observed and found to be true on location at time of Measurement. No marking was present on the Map for South West Location and hence could not be ascertained. Area Marked X & Y in the District Judge report is not bounded by M/s Northern India Paint Colour and Varnish Company LLP and could not be measured. Currently construction activity is being carried out inside the bounded portion of the subject property of M/s Northern India Paint Colour and Varnish Company LLP. Report is submitted with approval of District Magistrate (North). Encls: as above RAHUL SAINI, DANICS (SDM MT)”
23. Against the aforesaid second status report filed on behalf of SDM (Model Town), objections came to be filed on behalf of respondent No.1. By way of the objections, it was submitted on behalf of respondent No.1 that the area as mentioned for property no. 2, 5 and 7, Canal Road, Vijay Nagar, Delhi – 110009 was incorrect as the area of the said properties was 17 bigha 8 biswas, which was approximately 17,536 Sq. yds., whereas the area mentioned in the report was 12090 Sq. yds. Therefore, there was a deficit of an area of 5446 Sq. yds. in respect of property nos. 2, 5 and 7, Canal Road, Vijay Nagar, Delhi – 110009. It was further objected on behalf of respondent No.1 that property No.1, Canal Road, Vijay Nagar, Delhi, which was alleged to be owned by Ashoka Manufacturing Company Private Limited, held excess area of 1333.[6] Sq. yds. Thus, it was prayed by respondent No.1 for directions to respondent No.2 to demarcate the subject properties by metes and bounds and convey the deficit area of nearly 5667.53 Sq. yds. in respect of properties bearing Nos. 2, 5 and 7, Canal Road, Vijay Nagar, Delhi – 110009.
24. In view of the objections as filed on behalf of respondent No.1, this Court vide order dated 27.09.2022 had directed the SDM concerned to file an affidavit as to whether demarcation had been carried out as per the order dated 08.04.2021 passed by Division Bench of this Court. Thus, order dated 27.09.2022 passed by this Court reads as under:
25. Pursuant to the aforesaid directions dated 27.09.2022, an affidavit was filed on behalf of respondent No.2/SDM (Model Town), wherein it was categorically stated that the process of demarcation/measurement was carried out in terms of the directions of the Division Bench, keeping in mind the inquiry report of the then District and Sessions Judge dated 06.01.1998. The affidavit dated 29.10.2022 as filed on behalf of respondent No.2/SDM (Model Town) is reproduced as under: “………. I, Gagan Deep, S/o Late Sh. Rameshwar, aged about 54 years, officiating as Sub Divisional Magistrate, Model Town, Department of Revenue, Government of NCT of Delhi do herby state and affirm as under:
1. That I am as above and well aware with the facts of the present matter and therefore competent to file the present affidavit.
2. That I have read the order dated 27.09.2022 and have understood the directions issued by this Hon'ble Court in the said order.
3. That I say that there are 2 (two) Status Report(s) filed on record by the Respondent No. 2. That the first Status Report is dated 22.12.2021 and the second Status Report has been filed vide index dated 29.03.2022.
4. That the Deponent has read both the Status Report(s) and has also referred to the record maintained in its office.
5. That I say that as per the first Status Report, it was submitted that the field book and Masavi of Rajpur Chhawani were not traceable despite best efforts. It was also stated in the said Status Report that as per the revenue records available with the department, Custodian of Enemy Properties is not the owner of the disputed Khasra Numbers. It was further stated that the area been densely populated and the said village been urbanized. There is no survey stone/reference stone available in this area which is the basic requirement for demarcation. It was also submitted that the demarcation perse is not feasible but measurement as per the report of the Ld. District Judge dated 06.01.1998 can be carried out.
6. That keeping in view the directions issued by the Hon 'ble Division Bench of this Court in LPA No. 81 of 2021 vide order dated 08.04.2021, the process of demarcation/measurement was carried out bearing in mind the enquiry report of the then District & Sessions Judge, Mr. K.P. Verma dated 06.01.1998 which in-turn was submitted to the Hon'ble Supreme Court pursuant to its order dated 03.11.1997.
7. That the process for identification/measurement of the property was carried out successfully on 09.03.2022 after a long process in presence of 4 (four) officers of CEPI as well as other revenue officials. That on the measurement which was received from the private TSM surveyor Kanungo of Revenue on the basis of the measurement report received from the surveyor and the ownership records available in the file, the findings were arrived at and it was found that the Petitioner is carrying the construction activity inside its bounded portion. In the Status Report, it was also stated that which other property owners are in the excess portion of their respective property.
8. That it is most respectfully prayed that the present affidavit may kindly be read with the earlier 2 (two) filed Status Reports.
9. That the deponent shall abide by the order(s) which may be passed by this Hon'ble Court in the present matter.
DEPONENT Verified at New Delhi on this the __ day of October, 2022 that the contents of the above affidavit are true and correct to the best of my knowledge and belief and no part of it is false and nothing material has been concealed therefrom. DEPONENT”
26. Thus, relying upon the status reports as well as the aforesaid affidavit, it has been categorically submitted by Mr. Sameer Vashisht, Additional Standing Counsel (Civil), GNCTD that the demarcation/measurement of the property has been carried out on 09.03.2022 keeping in view the directions issued by Divison Bench of this Court in its order dated 08.04.2021 in LPA No. 81/2021.
27. At this stage, it is noteworthy to refer to the rejoinder filed on behalf of respondent No.1 herein in the appeal filed on its behalf, i.e., LPA No. 81/2021. Reference to para - 4 of the rejoinder clearly shows that it is the categorical submission on behalf of the respondent No.1 herein (appellant in appeal) that they have never claimed the land in possession of the petitioner herein (respondent No.1 in appeal) as the enemy property. It is further the case on behalf of respondent no.1 herein that the details of the enemy properties does not mention the property which is in possession of the petitioner herein. Para – 4 of the rejoinder filed on behalf of respondent No.1 herein before Division Bench of this Court in LPA No. 81/2021 is reproduced as under: “……….
4. That the contents of Para 4 of the preliminary submissions are false and hence denied to the extent it is in contradiction to the averments made by the Appellant in the present Appeal. It is pertinent to mention that the said inquiry report does not have any bearing upon the merits of the case and there is nothing material to substantiate the grounds for appeal, therefore the same was not mentioned for the sake of brevity. It is equally important to mention that the Appellant have never claimed the land in the possession of the Respondent No. 1 as the Enemy Property. In fact, in the letter dated 24.08.2020 the details of the Enemy Properties were categorically stated and there was no mention of the property which is in possession of the Respondent No. 1. Since there was no joint demarcation for the property No.1,2, 5 and 7, Canal Road, Vijay Nagar, New Delhi so there is an apprehension that there could be some encroachment on the Enemy Property, therefore in the interest of justice a joint demarcation is warranted. ………”
28. Reference to the second report of demarcation filed on behalf of respondent No.2/SDM (Model Town) clearly shows that the area in possession of the petitioner herein is in shortfall of 172.17 Sq. yds. Further, the report filed on behalf of SDM (Model Town) clearly notes that the construction activity being carried out by the petitioner, was being carried out inside the bounded portion of the subject property under possession of the petitioner. Further, there is categorical submission on behalf of the petitioner that the construction carried out by it is within the boundary of the area under its possession.
29. This Court has also perused the layout plan and photographs of the area showing the current status and location of the properties, attached as annexure P-2 with the present writ petition. Perusal of the aforesaid shows that the property of the petitioner does not have a common boundary with property nos. 2, 5 and 7, Canal Road of respondent No. 1. The aforesaid layout plan and photographs further show that the property of the petitioner is situated at a distance of 165 feet from property Nos. 2, 5 and 7, Canal Road, of the respondent No. 1.
30. It is also important to refer to the counter affidavit dated 28.04.1989 filed by respondent No.1 in Civil appeal No. 3099/1989 before Supreme Court. In the said counter affidavit, the respondent No.1 stated in categorical terms that the property in question was an Evacuee Property and had vested with the Custodian of Evacuee Property under the administration of Evacuee Property Act. It was further submitted in their counter affidavit that the property in question was allotted to the petitioner, who was a displaced person.
31. Considering the various documents and submissions on record and the detailed discussion hereinabove, it has come to the fore that the petitioner herein is occupying land in question legally, in his own right, as the same was handed over to the petitioner pursuant to proceedings before Supreme Court. Conveyance Deed was executed in favour of the petitioner by the Government. The demarcation report filed on behalf of respondent No.2, SDM (Model Town), clearly brings to the fore that the petitioner herein is not occupying any excess piece of land. Rather, the SDM report clearly states that there is shortfall of 172.17 Sq. yds. in the possession of the petitioner of the land in question. The SDM report is also very categorical that the construction being carried out by the petitioner is within the area inside the bounded portion under the possession of the petitioner.
32. It is also noteworthy to note that it is the case of respondent No.1 itself that the land in possession of the petitioner is not being claimed by the respondent No.1 as enemy property. Thus, the very premise of issuance of Restrainment Order dated 28.08.2020 issued by the Office of Divisional Magistrate (Model Town), Revenue Department, GNCTD is itself falsified. The said Restrainment Order dated 28.08.2020 had been issued on the apprehension of respondent No.1 that the property of the petitioner may be enemy property and thus it was stated therein that verification of the documents/revenue records is required. However, the documents on record point to the fact that the respondent No.1 itself also does not consider the property in possession of the petitioner as being enemy property. Further, it has also come to the fore that the petitioner has not encroached upon any land and that the construction being carried out by the petitioner is on the land which is bounded and under the possession of the petitioner.
33. The documents on record also point out clearly to the fact that the property of the petitioner does not share any common boundary with plot Nos. 2, 5 and 7, Canal Road of respondent No.1. Thus, if the land belonging to respondent No.1 is in shortfall in any manner, the respondent No.1 would have to take recourse to independent proceedings in that regard. The land of the petitioner cannot be allowed to continue to be embroiled in any litigation, when facts on record are clear that the possession of the petitioner is lawful on the basis of a Lease Deed executed in favour of the petitioner under directions of Supreme Court.
34. The impugned Restrainment Order dated 28.08.2020 has clearly been issued only on the basis of conjectures and surmises, on the basis of some unfounded apprehension, unsupported by any factual or legal basis. The concern expressed on behalf of respondent No.1 that the demarcation by respondent No.2 is not in terms of the direction of the Division Bench, is also unfounded. The SDM has deposed on affidavit in categorical terms that the demarcation/measurement exercise has been carried out in terms of directions of the Division Bench. Nothing has been pointed out by respondent No.1 as to in what manner is the possession of the petitioner dubious or in doubt or that the property of the petitioner is an enemy property.
35. In view of the aforesaid detailed discussion, it is held that the order dated 28.08.2020 issued by respondent No.2 is improper, unjustified and without any basis. Accordingly, Restrainment order dated 28.08.2020 issued by the Office of Divisional Magistrate (Model Town), Revenue Department is hereby quashed.
36. The present writ petition is disposed of in the aforesaid terms, along with all the pending applications. MINI PUSHKARNA, J JANUARY 20, 2023 c/au