Delhi High Court - Orders
Sanjay Gupta vs Government Of Nct Of Delhi & Ors on 3 May, 2023
$~36
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 1852/2022
SANJAY GUPTA ..... Petitioner
Through: Mr. Manish Vashishth, Sr.
Adv., Mr. Sumit kumar Shukla
and Mr. Vanshay Kaul, Advs.
(8800652304)
Email:
[email protected]
versus
GOVERNMENT OF NCT OF DELHI & ORS .....Respondents
Through: Mr. Rishikesh Kumar, ASC,
GNCTD with Mr. Aditya Raj,
Mr. Muhammad Zaid, Mr.
Sudhir Kr. Shukla, Mr. Sudhir ,
Ms. Sheenu Priya and Ms.
Roshni Haldhar, Advocates
(9911483629)
CORAM:
HON'BLE MS. JUSTICE MINI PUSHKARNA
ORDER
% 03.05.2023 [Physical Hearing/ Hybrid Hearing]
1. The present writ petition has been filed by the petitioner with prayer for quashing and setting aside the correspondence dated 12.07.2021 issued by the Municipal Corporation of Delhi, respondent No.6 to the Sub Divisional Magistrate (SDM), (Mehrauli) respondent No.2. There is further prayer for quashing/setting aside the correspondence dated 06.08.2021 issued by the SDM (Mehrauli) Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL Signing Date:08.05.2023 18:39:22 /respondent No.2 to the Municipal Corporation of Delhi.
2. It is the case on behalf of the petitioner that village Chandanhaula, where the land of the petitioner is situated has already been declared as a Low Density Residential Area (LDRA) vide notification issued on 18.06.2013. Thus, it is submitted that there is no hindrance to the petitioner constructing a group housing on the land which is privately owned by the petitioner.
3. It is submitted that with the intention to raise a group housing on its own land, the petitioner had applied for sanction of building plan to the Municipal Corporation of Delhi. However, Municipal Corporation of Delhi had by letter dated 12.07.2021, sought no objection certificate (NOC) from the SDM (Mehrauli). It is submitted that by its letter dated 06.08.2021, the SDM (Mehrauli) directed the MCD to seek a clarification with respect to the verification/authenticity of the ownership and status of land of the petitioner herein.
4. Learned counsel appearing for the petitioner submits that since the land in question has already been declared as LDRA in urban extension, therefore, there is no requirement of seeking any NOC by the MCD from the Revenue Authorities.
5. Learned counsel appearing for the petitioner relies upon the judgment in the case of Uppal Housing Private Limited vs. Government of NCT of Delhi and Others, reported as MANU/DE/3220/2021. The said judgment pertains to the village Chandanhaula, the same village which is the subject matter of the present petition. Learned counsel appearing for the petitioner has Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL Signing Date:08.05.2023 18:39:22 relied upon the following paras from the said judgment which are reproduced hereinbelow:
"15. The Court notes that although Mr. Rohtagi, learned counsel has contended that consolidation was ongoing, no cogent material has been placed on the record in support of that contention nor was the attention of the Court drawn to any material existing on the record which may have even remotely established that consolidation proceedings were ongoing in the village in question. Mr. Rohtagi in this regard essentially relied upon certain observations appearing in the order dated 22nd January, 2021 passed by the Collector, South in Case No. 15/2018 and more particularly the recitals appearing in paragraph 15 of that order to submit that the factum of an ongoing consolidation process was duly established. It becomes pertinent to note that the findings of the Collector, South in paragraph 15 of that order in this respect rest on a statement of the Tehsildar dated 07th January, 2021 and the fact that the "khatauni paimaish" had not been prepared.
16 . The Court is constrained to observe that the fact of whether consolidation is ongoing or has come to a conclusion cannot rest on a mere bald certification of that fact by the Tehsildar. It is clearly not an issue which could be founded on mere ipse dixit. Despite repeated queries of the Court, the respondents failed to assert that a final consolidation scheme had not been published or that landholders had not been placed in possession of the plots earmarked and demarcated upon finalization of that scheme. The respondents do not allude to any factor or step in aid of conclusion of consolidation as contemplated in Sections 20 to 24 of the EPH Act which may have established that consolidation was ongoing.
17. Regard must be had to the fact that Section 24 of the EPH Act in unambiguous terms provides that the scheme shall be "deemed to have come into force" once landholders are inducted into possession and that position Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL Signing Date:08.05.2023 18:39:22 shall remain undisturbed until a fresh scheme is brought into force or a change ordered pursuant to the provisions of Section 21 or orders passed under Sections 36 or 42 of the EPH Act. The Court in this regard takes into consideration the entry of the name of the vendors of the petitioner in the "Register Karyawahi Chakbandi" placed on the record as Annexures P-1 to P-9. It is also not the case of the respondents that the Government has invoked or initiated any action under Sections 36 or 42 of the EPH Act.
18. In fact, the record to the contrary reflects that upon completion of consolidation proceedings, the land holders were put into possession of the plots as a consequence of a final consolidation scheme coming to be enforced and it is only thereafter and consequent to all requisite statutory formalities being complied with that the sale deeds came to be executed in favour of the petitioner. Regard must be had to the fact that the provisions of Section 30 of the EPH Act operate only while consolidation proceedings are pending. The restraint operates upon a landowner or a tenant from transferring or otherwise dealing in any portion of the original holding only during the pendency of consolidation proceedings. The assumption on which the impugned order is based is clearly belied from the disclosures made in the various status reports and affidavits submitted by the respondents which have been referred to hereinabove. In the absence of any cogent material having been brought on record and which may have established that consolidation had not attained finality, the invocation of Section 30 of the EPH Act is clearly misplaced."
6. Learned Senior Counsel appearing for the petitioner by relying upon the aforesaid judgment, submits that with respect to land which is adjacent to the land of the petitioner, this Court has already held that there are no proceedings under Section 36 or 42 of The East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act 1948 Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL Signing Date:08.05.2023 18:39:22 (EPH Act); and therefore, it has been already held by this Court that no consolidation proceedings are pending qua the village in question.
7. Learned Senior Counsel for the petitioner also relies upon the judgment in the case of Mahajan Industries Private Limited Vs. Gaon Sabha, reported as 2023 SCC Online Del 23. Learned counsel relies upon the following paras from this judgment:-
"6. Reference may also be made to notification dated 18.06.2013 issued by the Ministry of Urban Development (Delhi Division), Govt. of India, wherein land in question has been notified as Low Density Residential Area (LDRA). The said notification gives the details of list of villages which have been declared as Low Density Residential Area (LDRA) in urban extension. The name of Village Chattarpur is reflected at serial no. 3 of the said notification dated 18.06.2013 issued by the Ministry of Urban Development, Government of India.
..........
14. In the present case, it is clearly seen that land in question, i.e., village Chattarpur has already been declared as urbanised by virtue of notification under DMC Act as well as DDA, Act. Further, land in question has also been declared as Low Density Residential Area (LDRA) as per notification issued by the Government of India. Thus, user of the land, as such, as declared by the Master Plan and notifications of the DDA as well as MCD, is now residential. Therefore, once notification of the government and its authorities as well as the Master Plan itself declare user of the land as residential, then the owner of the land in question cannot be forced to use the land for agricultural purposes, when the land in question has ceased to be agricultural in nature."
8. By referring to the aforesaid judgment, it is submitted on behalf of the petitioner that once a land has been declared as LDRA, the user Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL Signing Date:08.05.2023 18:39:22 of the said land is taken as residential and the said land ceases to be an agricultural land. Thus, he submits that the petitioner ought to be allowed to construct the group housing over the private land owned by the petitioner and that the Municipal Corporation of Delhi ought to sanction the building plans for construction of group housing.
9. On the other hand, learned Additional Standing Counsel appearing on behalf of Delhi Government submits that an additional affidavit on behalf of Delhi Government has already been filed, in terms of the liberty granted by this Court on previous date. Learned counsel for the respondent has relied upon the said additional affidavit to contend that there were certain anomalies that were found in the consolidation process undertaken earlier.
10. He submits that pursuant to an inquiry conducted by the SDM (Mehrauli), anomalies and irregularities were found in the on-going consolidation proceedings of village Chandanhaula. Thus it is submitted that the consolidation proceedings of village Chandanhaula is under investigation.
11. He submits that he has instructions to state that the matter has been referred to the Lieutenant Governor of Delhi. He submits that an inquiry has been instituted to find out as to how anomalies occurred in the consolidation proceedings with respect to village Chandanhaula, especially with respect to Khasra bearing Nos. 532/1, 532/2 and 531/2 under extended Abadi. Thus, he submits that any allotment pursuant to earlier consolidation proceedings, cannot be considered as a final allocation, due to anomalies and inconsistencies found in the consolidation process.
Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL Signing Date:08.05.2023 18:39:2212. Further, Learned Additional Standing Counsel for the Delhi Government submits that the Lieutenant Governor has already given an in principle approval for initiation of proceedings under Section 36 of the EPH Act, for the purposes of revoking the earlier consolidation proceedings of village Chandanhaula and for initiation of fresh consolidation proceedings with respect to village Chandanhaula. He further submits that he may be granted time to place on record all the relevant documents pertaining to the approval having been granted by the Lieutenant Governor.
13. Learned Senior Counsel for the petitioner on the other hand has drawn the attention of this Court to the copy of Register Karyawahi Chakbandi, which has been annexed as Annexure P-1 to the present writ petition. By reference to the said document, it is stated on behalf of the petitioner that 1½ acres of the land of the petitioner was taken in the year 2003 as "Muzrai" land, during the consolidation proceedings in the year 2003. Learned Senior Counsel for the petitioner has further drawn the attention of this Court to a document of extended Abadi/Lal Dora certificate dated 15.09.2012 issued by the Tehsildar, Hauz Khas, Office of SDM, Mehrauli. By reference to the said document, it is submitted on behalf of the petitioner that the respondent itself has issued the certificate showing the land adjacent to the land of the petitioner as "Abadi Deh". Thus, it is submitted that the respondents are guilty of discriminatory treatment against the petitioner.
14. In view of the aforesaid submissions made on behalf of the petitioner, the respondent is directed to seek instructions on all the Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL Signing Date:08.05.2023 18:39:22 issues as raised by the learned Senior Counsel for the petitioner, as recorded hereinabove. Further, liberty is granted to the respondents to file on record all the documents pertaining to the orders issued by the Lieutenant Governor/approval granted by the Lieutenant Governor, with respect to the consolidation proceedings in village Chandanhaula. Let the needful be done by the respondents within a period of 4 weeks.
15. Liberty is also granted to the petitioner to file any response to the affidavit/documents to be filed on behalf of the respondent/Delhi Government.
16. Re-notify on 16.08.2023.
MINI PUSHKARNA, J MAY 3, 2023 sc Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL Signing Date:08.05.2023 18:39:22