National Green Tribunal
Kamlesh Jonwal President Rwa vs Uday Punj on 9 August, 2024
Item No. 09 Court No. 2
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
Original Application No. 914/2022
Kamlesh Jonwal President RWA Applicant
Versus
Uday Punj Respondent
Date of hearing: 09.08.2024
CORAM: HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
Applicant: Mr. Ankit Raj, Advocate
Respondent(s): Mr. Pinaki Misra, Senior Advocate with Mr.
Ramashankar Pandey, Mr. Sameer Sood, Mr. P. R.
Rajhans, Mr. Vivek Singh, Mr. Tarun Kumar Advocates
for Respondent No. 1
Ms. Garima Prasad Senior Advocate with Ms. Kritika
Gupta and Ms. Latika Malhotra, Advocates for
respondent no.2- DDA with Mr. Banarasi Dass, DD1 and
Mr. Manoj Tomar, Patwari, LM, DDA
Ms. Jyoti Mendiratta and Ms. Ananya Basudha,
Advocates for DM, New Delhi
Ms. Puja Kalra and Mr. Virendra Singh, Advocates for
Respondent no. 5- MCD
ORDER
1. This Original Application under Sections 14 and 15 of National Green Tribunal Act, 2010 (hereinafter referred to as 'NGT Act, 2010') was registered in exercise of suo-moto jurisdiction in view of law laid down by Supreme Court in Municipal Corporation of Greater Mumbai 1 vs. Ankita Sinha, (2022)13SCC401 on a letter petition dated 12.12.2022 sent by Shri Kamlesh Jonwal, President, Residents Welfare Association, Kaveri Apartment, D-6, Vasant Kunj, New Delhi.
2. Complainant said that on both sides of road from exit gate of Kaveri Apartment and Yamuna Apartment, D-6, Vasant Kunj with coordinates: between (28.52528464646818, 77.1531238476458), (28.525968060025633 77.15355836552308), (28.52582666448071, 77.15375148457964), (28.52378112104593, 77.1521153370171), (28.524129903148193, 77.15204023516176), there was a greenbelt left open on both the sides whereon Mr. Uday Punj i.e., respondent 1 has raised a brick wall in November 2022 and thereby damaged the greenbelt.
3. In the letter petition, complainant had impleaded Uday Punj as respondent 1 and Delhi Development Authority as respondent 2.
4. This Tribunal took cognizance of the matter on 05.01.2023 and found it appropriate to implead further Divisional Conservator of Forest (Western Zone)/Tree Officer as respondent 3, District Magistrate (South West), Delhi as respondent 4 and Commissioner, Municipal Corporation of Delhi as respondent 5.
5. Respondent 1 had put in appearance through Caveat Application No.20 of 2022 stating that property bearing khasra no.480/396/87 (3-
12), 479/396/87 (3-12), 86(9-12), 88(9-17) and 67(4-01) measuring 30 bighas and 14 biswasin Village Masoodpur, New Delhi belongs to him and, therefore, before passing any injunctive order, he be given an opportunity of hearing.
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6. Tribunal issued notices to all the respondents except respondent 1 who was already represented by means of Caveat Application and permitted the respondents to file their responses.
7. Consequently, respondent 1 filed its response dated 10.01.2023, stating that acquisition proceedings were initiated under Land Acquisition Act, 1894 (hereinafter referred to as 'LA Act, 1894') in respect of land comprising khasra no. 480/396/87 (3-12), 479/396/87 (3-12), 86(9-12), 88 (9-17) and 67(4-01) measuring 30 bighas 14 biswas in village Masoodpur at the instance of Delhi Development Authority. An Award No. 90/1980-81 dated 22/29.12.1980by Land Acquisition Authority was made. Since the possession of land was not taken and in the meantime, new Land Acquisition Act i.e., Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as 'LA Act, 2013') came into force on 01.01.2014, wherein, Section 24(2) provides certain benefit to land owners whose land was acquired but possession actually not taken over and provision was made for lapsing of the acquisition proceedings in such a case.
8. Father of respondent 1, Shri Satya Narain Prakash Punj filed Writ Petition (Civil) No. 6390/2014, Satya Narain Prakash Punj vs. Union of India &Ors. in High Court of Delhi seeking benefit of Section 24(2) of LA Act, 2013 on the ground that possession of acquired land owned by Satya Narain Prakash Punj was not taken over by the State. Writ Petition was allowed by Delhi High Court vide judgment dated 23.02.2015 and operative part of judgment reads as under:
"10. As such, in the present case, neither physical possession of the subject land has been taken nor has any compensation been paid to the petitioner. The Award was made more than five years prior to the coming into force of the 2013 Act. No period is liable to be 3 excluded inasmuch as the second proviso, which has been newly inserted by virtue of the Ordinance, is not applicable, as indicated above.
11. As a result, the petitioner is entitled to a declaration that the said acquisition proceedings initiated under the 1894 Act in respect of the subject lands are deemed to have lapsed. It is so declared.
12. The writ petition is allowed to the aforesaid extent. There shall be no order as to costs."
9. Aggrieved by Delhi High Court's judgment dated 23.02.2015, Delhi Development Authority filed SLP No.32635/2015 (Civil Appeal No.4590/2016) which was tagged with a bunch of Appeals pending in Supreme Court led by Civil Appeal No. 4544 of 2016,Delhi Development Authority vs. Reena Suri &Ors.
10. Supreme Court vide judgment dated 28.04.2016 observed that once an award has been made by Collector under Section 11 of LA Act, 1894, the possession must be taken by Collector and, only thereafter, the land will vest in the Government free from all encumbrances. Mere passing of award by itself will not enable the Land Acquiring Authority to raise a contention that the land has automatically vested with the Government on passing of the award. Supreme Court observed that since it was not disputed in the matters pending before it that possession of the land was not taken by Collector within five years or more prior to 01.01.2014 when LA Act, 2013 came into force, therefore, judgment of High Court was correct and accordingly, Appeals were dismissed by Supreme Court. The relevant extract of judgment of Supreme Court dated 28.04.2016 , paras 6 to 8, is reproduced as under:
"6. Under the above provision, once an award has been made by the Collector under Section 11 of the Act, 1894, the Collector has to take possession of the land and only thereupon, the land will vest in the Government free from all encumbrances. Therefore, passing of 4 the award by itself will not enable the appellant to take a contention that the land has automatically vested with the Government on passing of the award.
7. It is not in dispute that in all these cases, the land has not been taken possession of by Collector within five years or more prior 01.01.2014 when the 2013 Act came into force.
8. In that view of the matter, there is no merit in these appeals. The appeals are, accordingly, dismissed.
No costs."
11. Government of NCT of Delhi through Secretary, Land and Building Department, filed Civil Appeal No. 12113/2016 (SLP (Civil) No. 36656/2016) against Delhi High Court's judgment dated 23.02.2015. The above Appeal was clubbed with large number of similar Appeals led by Civil Appeal No. 12076/2016, Govt. of NCT of Delhi through Secretary Land and Building Department vs. Govind Ram & Anr. and all the said Appeals including Civil Appeal 12113/2016 pertaining to the matter of respondent 1 were dismissed vide judgment dated 08.12.2016 by Supreme Court and the order reads as under:
"Delay condoned.
2. Leave granted.
3. It is brought to our notice that the appeals on identical issues, filed by the Delhi Development Authority have already been dismissed by this Court. Therefore, reserving the liberty for fresh acquisition within a period of one year granted in the said appeals, these appeals are also dismissed.
4. Pending applications, if any, stand disposed of.
5. No costs."
12. Further, Review Petition (Civil) Diary No.27968/2021 in Civil Appeal No.4590/2016 was filed by Delhi Development Authority which was also dismissed by Supreme Court vide order dated 31.03.2022. 5
13. Undeterred by the above repeated unsuccessful proceedings up to Supreme Court, Delhi Development Authority again filed M.A. (Civil) No. 4543/2023 seeking recall of the order dated 31.03.2022 passed by Supreme Court dismissing Review Petition (Civil) Diary No. 27968/2021 in Civil Appeal No. 4590/2016 and also judgment dated 28.04.2016 whereby Civil Appeal No. 4590/2016 were dismissed. The above M.A. was dismissed by order dated 21.08.2023 which reads as under:
"1. The delay of 286 days in filing the Miscellaneous Applications is condoned.
2. The review which was filed by the Delhi Development Authority against the dismissal of the Civil Appeal on 28 April 2016 suffered from a delay of 1386 days. The review was dismissed on 31 March 2022 by this Court both on this grounds of delay as well as on merits.
3. In this backdrop, the Miscellaneous Application is misconceived and is accordingly dismissed."
14. It is thus submitted that in the circumstances, the land in question continued to remain in possession of respondent 1 and the acquisition proceedings lapsed, hence he had all the rights to raise construction on the said land in accordance with law and merely for the reason that Delhi Development Authority or Municipal Corporation of Delhi in some illegal manner had raised some construction over the said land, it will not deprive respondent 1 from his title and construction raised by respondent 1 on the land in question, therefore, cannot be restrained by taking recourse to the allegation of damage to environment by disturbin g greenbelt which was not created or developed or earmarked on a construction plan prepared at the instance of respondent 1 and approved by Competent Authority.
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15. We find that basically there is a serious dispute about 'title and possession of land' which is admittedly part of khasra no.87. This land which was subject matter of dispute before Delhi High Court as well as Supreme Court in the above proceedings and the same was decided in the favour of respondent 1.
16. Since a dispute of title and/or possession has been seriously raised in this matter, the cause of action is not within the domain of this Tribunal under Sections 14 and 15 as this dispute has to be settled between the parties before appropriate Forum.
17. We are informed that a Civil Suit No.244 of 2020, Uday Punj vs. Delhi Development Authority & Anr., is already pending in Delhi High Court and that being so, we do not find that any further order is required to be passed in this matter.
18. This Original Application is accordingly dismissed.
Sudhir Agarwal, JM Dr. Afroz Ahmad, EM August 09, 2024 Original Application No.914/2022 M 7