Delhi High Court - Orders
Smt. Asha Chaudhary vs Dy. Conservator Of Forest South Delhi & ... on 10 October, 2022
Author: Chandra Dhari Singh
Bench: Chandra Dhari Singh
$~22
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 12240/2021 & CM APPL. 38305/2021
SMT. ASHA CHAUDHARY ..... Petitioner
Through: Mr. Rakesh K. Khanna, Sr. Advocate
with Mr. Sunil Kumar, Mr. Aditya K.
Archiya and Mr. Ashish Tanwar,
Advocates
versus
DY. CONSERVATOR OF FOREST SOUTH DELHI & ANR
..... Respondents
Through: Mr. Shadan Farasat, ASC for GNCTD
with Ms. Hrishika Jain, Advocate for
R-1and 2
CORAM:
HON'BLE MR. JUSTICE CHANDRA DHARI SINGH
ORDER
% 10.10.2022
1. By way of instant writ petition under Article 226 of the Constitution of India, the petitioner seeks the following reliefs:-
"a) admit the writ petition;
b) direct the respondents not to take any coercive action against the petitioners in regard to dispossession and demolition qua the subject property bearing farm land bearing khasra nos. C- 13, bearing Khasra No. 1699 min (2-1), 1700(0-
17), 1701 min (0-18), 1706 min (1-1), 1726 (3-7), & Khasra No. 1697 min (1-14), 1698 (0-12), 1727(2-14) total ad- measuring 13 Bigha and 04 Biswa situated in the revenue estate of Village Asola, Tehsil Hauz Khas Mehrauli, New Delhi, consisting of built up Kothi, Tube well, boundary wall, electric connection, meter and room and Signature Not Verified Digitally Signed By:GAURAV SHARMA W.P.(C) 12240/2021 Page 1 of 5 Signing Date:10.10.2022 18:01:43 further permit the petitioner to repair her boundary wall and demolished structure, such other and further writ, order or directions as may be deemed appropriate in the present proceedings
(d) Award cost of proceedings to the humble petitioner..."
2. The Petitioner is the recorded owner in physical possession of a farm house bearing khasra nos. C-13, bearing Khasra No. 1699 min (2-1), 1700(0-17), 1701 min (0-18), 1706 min (1-1), 1726 (3-7), & Khasra No. 1697 min (1-14), 1698 (0-12), 1727(2-14) total ad- measuring 13 Bigha and 04 Biswa (hereinafter referred to as "Suit Property") situated in the revenue estate of Village Asola, Tehsil Hauz Khas, Mehrauli, New Delhi, consisting of built up kothi, tube well, boundary wall, electric connection, meter and room. She purchased the suit property vide separate registered sale deeds executed on 26th March 2012. Prior to execution of the sale deeds „No Objection Certificate' was also obtained from the Revenue Department.
3. The suit property is a Farm House duly bounded by the boundary wall and plantations since 1992. The suit property is duly mutated in the revenue record in the name of the Petitioner and she is paying house tax in accordance with the demand raised by Municipal Corporation of Delhi. Since the time of purchase of the Farm House by the Petitioner, she is enjoying the possession of the suit property being its owner.
4. On 20th October 2021 the officials of the Respondents demolished the boundary wall and some structure of the Petitioner's property. The Petitioner is thus aggrieved by the conduct of the Respondents of demolition of the property belonging to the Petitioner.
5. Learned senior counsel appearing on behalf of the Petitioner has Signature Not Verified Digitally Signed By:GAURAV SHARMA W.P.(C) 12240/2021 Page 2 of 5 Signing Date:10.10.2022 18:01:43 submitted that the officials of the Respondents though, have no right, title or interest of any kind whatsoever, qua the suit property but despite that, the officials of the Respondents on 20th October 2021 demolished the boundary wall and some structure of the Petitioner's property illegally without any notice and without following the due process of law.
6. It is further submitted that no demarcation has ever been carried out by the Respondents to ascertain the actual factum of any encroachment so without proper demarcation, the demolition action by the respondent is absolutely illegal and unjust. Moreover, no notice of any proceedings was ever served by the Respondents upon the Petitioner and demolition action qua petitioner's property is totally illegal and a classic example of violation of principal of natural justice.
7. It is also submitted that the Revenue Authorities have been recording the Khasra Girdawari by inspecting the subject land physically and till date no notice has ever been served upon the Petitioner regarding the subject land which do confirm the perfect title of the Petitioner qua the subject land.
8. Per Contra, learned ASC appearing for the Respondents has opposed the instant writ petition and submitted that disputed questions of facts may not be decided by way of a writ petition. He has contended that as per the orders of the Hon'ble Supreme Court and the National Green Tribunal, encroachment on forest land has to be removed and in pursuance of the provisions of Section 4 of the Indian Forests Act, 1927, inter alia, village Asola was notified as part of "reserved forest land" vide Notification No. F.10(42 )- I / PA/DCF/93/ 2012-17(I), dated 24th May 1994.
9. It was further submitted that Khasra numbers 1699, 1700, 1701, 1706, 1726, 1697, 1698 and 1727 which comprises the suit property have not been Signature Not Verified Digitally Signed By:GAURAV SHARMA W.P.(C) 12240/2021 Page 3 of 5 Signing Date:10.10.2022 18:01:43 identified as reserved forest land and in fact it is only Khasra No. 1724, which has been identified as reserved forest land and thus falls under the jurisdiction of the Forest Department,.
10. Learned ASC has also argued that in pursuance of the orders passed by the National Green Tribunal and Hon'ble Supreme Court proper notice has been given to the Petitioner and then only the encroachment has been removed. It is further submitted since there are disputed facts involved in the instant writ petition therefore; this Court may not entertain the instant writ petition and give any relief as prayed while exercising the writ jurisdiction. Accordingly, the instant writ petition being devoid of merits is liable to be dismissed with costs.
11. At this juncture, on instructions learned senior counsel for Petitioner has submitted not to press the instant writ petition on merits and has made an innocuous prayer to approach the concerned authority i.e., the Forest Settlement Officer or the District Magistrate for redressal of the grievance made in the instant writ petition.
12. Learned counsel for the Respondents at this stage submitted that as the Petitioner is not pressing the matter on merits and is only making an innocuous prayer, then he has no objection.
13. Heard learned counsel for the parties and perused the record. After perusing the contentions as well as entire pleadings, I am also of the view that there are several disputed facts involved in the instant writ petition and hence, I find force in the arguments of the Respondents. Since, the Petitioner has not pressed the instant writ petition on merits and has only made an innocuous prayer to make a representation before the concerned authority and there is no objection from the Respondents, I am inclined to grant the Signature Not Verified Digitally Signed By:GAURAV SHARMA W.P.(C) 12240/2021 Page 4 of 5 Signing Date:10.10.2022 18:01:43 innocuous prayer so sought.
14. In view of the facts and the above discussion, Petitioner is directed to file a detailed representation/application along with the copy of the instant writ petition, copy of the counter affidavit, copy of the rejoinder affidavit, if any, as well as the as well as the certified copy of this order before the Forest Settlement Officer /the concerned District Magistrate within a period of two weeks from today and after receiving the detailed representation, the concerned authority is directed to dispose of the detailed representation after hearing the Petitioner and pass a detailed and reasoned order in accordance with law expeditiously, preferably within a period of six weeks.
15. It is also directed that both the parties will submit the additional documents, if any, which will help in deciding the dispute in question after supplying a copy to the other party. The Petitioner is at liberty to file an application for demarcation before the concerned authorities as per the statutory provisions, subject to the deposition of requisite fee and the concerned authorities shall decide the application for demarcation expeditiously.
16. It is made clear that both the parties shall maintain status quo till the decision on the said representation.
17. With the aforesaid directions, the instant petition is disposed of along with pending applications, if any.
CHANDRA DHARI SINGH, J OCTOBER 10, 2022 Dy/mg Signature Not Verified Digitally Signed By:GAURAV SHARMA W.P.(C) 12240/2021 Page 5 of 5 Signing Date:10.10.2022 18:01:43