Delhi High Court
Dilip Singh & Ors. vs Govt. Of Nct Of Delhi And Ors. on 3 March, 2023
Neutral Citation Number: 2023/DHC/001725
$~2 & 3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 3rd March, 2023
+ W.P.(C) 11909/2022 & CM APPL. 35547/2022
DILIP SINGH & ORS. ..... Petitioners
Through: Mr. Sanjay Poddar, Senior
Advocate with Mr. Ramkumar,
Mr. Sushil Kumar, Mr. Govind
Chaudhary and Mr. Sachin
Bhatt, Advocates.
(M): 9711376612
Email: [email protected]
versus
GOVT. OF NCT OF DELHI AND ORS. ..... Respondents
Through: Mr. Rishikesh Kumar, ASC,
GNCTD with Mr. Udit Malik,
Mr. Aditya Raj and Mr. Vishal
Chanda, Advocates for
respondent/GNCTD.
(M): 7073011531
9999975448
Email: [email protected]
[email protected]
+ W.P.(C) 11933/2022 & CM APPL. 35655/2022
SATISH KUMAR & ORS ..... Petitioners
Through: Mr. Sanjay Poddar, Senior
Advocate with Mr. Ramkumar,
Mr. Sushil Kumar, Mr. Govind
Chaudhary and Mr. Sachin
Bhatt, Advocates.
(M): 9711376612
Email: [email protected]
versus
DM SOUTH WEST & ORS. ..... Respondents
Through: Mr. Rishikesh Kumar, ASC,
Signature Not Verified
Digitally Signed By:PURAN
SINGH TARIYAL W.P.(C) 11909/2022 & 11933/2022 Page 1 of 8
Signing Date:07.03.2023
19:21:14
Neutral Citation Number: 2023/DHC/001725
GNCTD with Mr. Udit Malik,
Mr. Aditya Raj and Mr. Vishal
Chanda, Advocates for
respondent/GNCTD.
(M): 7073011531
9999975448
Email: [email protected]
[email protected]
CORAM:
HON'BLE MS. JUSTICE MINI PUSHKARNA
[Physical Hearing/ Hybrid Hearing]
MINI PUSHKARNA, J. (ORAL):
1. The present writ petition has been filed with prayer for directions for quashing and setting aside the impugned Order No.SDM/KH/2022/52686 and Order No.SDM/KH/2022/52963 dated 04.08.2022 and 05.08.2022 respectively.
2. By way of the said orders dated 04.08.2022 and 05.08.2022, the SDM/Revenue Assistant (Kapashera) has held that there is encroachment on the phirni road of Village Shikarpur, New Delhi. The said letters set forth that demarcation was carried out by the concerned Revenue staff through Total Station Method (TSM). During demarcation proceedings, it was found that there was encroachment over the phirni road. Thus, the demolition order was passed by SDM, Kapashera wherein it was directed that in order to remove encroachment from road/Gram Sabha land, demolition drive has been fixed.
3. Mr. Sanjay Poddar, learned senior counsel appearing for the petitioners submits that the impugned orders refer to demarcation Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL W.P.(C) 11909/2022 & 11933/2022 Page 2 of 8 Signing Date:07.03.2023 19:21:14 Neutral Citation Number: 2023/DHC/001725 order, qua which no hearing was ever given to the petitioners.
4. Attention of this Court is drawn to the Notice dated 12.03.2019 issued by the Tehsildar (Kapashera). It is submitted that as per the said notice, the residents of Village Shikarpur were directed to appear before the SDM/Revenue Assistant (Kapashera) along with relevant records, which the said residents wanted to adduce in their defence. The said notice categorically stated that the residents who were the bhumidars were found encroachers/in illegal possession on the Gram Sabha land/ phirni/ public passage Khasra no. 84.
5. It is submitted that pursuant to the said notice dated 12.03.2019, no hearing was given to the petitioners.
6. Another notice dated 23.08.2019 was issued by subsequent Tehsildar (Kapashera), with directions to the petitioners to appear before the said authority. It is submitted that no hearing was given to the petitioners pursuant to the said notice also.
7. The aforesaid notice dated 23.08.2019 was followed by yet another notice dated 24.10.2019. The said notice was issued by yet another Revenue Official viz. Tehsildar (Kapashera) with directions to the petitioners to appear before the said authority for hearing.
8. Mr. Sanjay Poddar, learned senior counsel appearing for the petitioners submits that despite issuance of the aforesaid notices by the Revenue Authorities, no hearing was granted to the petitioners. It is further submitted that there were no orders which were passed pursuant to the said notices.
9. It is submitted that despite non-grant of any hearing to the petitioners or non-passing of any orders pursuant to the aforesaid Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL W.P.(C) 11909/2022 & 11933/2022 Page 3 of 8 Signing Date:07.03.2023 19:21:14 Neutral Citation Number: 2023/DHC/001725 notices, suddenly the impugned orders for demolition dated 04.08.2022 and 05.08.2022 were received by the petitioners herein, which were issued by the SDM/Revenue Assistant (Kapashera).
10. Learned senior counsel on instructions submits that the said notices/orders were pasted at the residence of the petitioners, thus, the cause of action arose for filing of the present writ petition.
11. It is submitted that the impugned orders for demolition refer to a demarcation report. The said demarcation proceedings has neither been carried in the presence of the petitioners, nor were the petitioners ever called upon for any hearing at the time of carrying out the said demarcation.
12. Learned senior counsel for the petitioners has relied upon the judgment in the case of Union of India & Others Vs Shiv Raj & Others, reported as (2014) 6 SCC 564, in order to contend that at the time of carrying out demarcation proceedings, hearing ought to be given to the affected persons. Learned senior counsel has relied upon the following paragraphs:-
"17. This Court in Gullapalli Nageswara Rao [Gullapalli Nageswara Rao v. A.P. SRTC, AIR 1959 SC 308] , held :
(AIR p. 327, para 31) "31. ... Personal hearing enables the authority concerned to watch the demeanour of the witnesses and clear up his doubts during the course of the arguments, and the party appearing to persuade the authority by reasoned argument to accept his point of view. If one person hears and another decides, then personal hearing becomes an empty formality. We therefore hold that the said procedure followed in this case also offends another basic principle of judicial procedure.
(emphasis added)"
Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL W.P.(C) 11909/2022 & 11933/2022 Page 4 of 8 Signing Date:07.03.2023 19:21:14Neutral Citation Number: 2023/DHC/001725
18. This Court in Rasid Javed v. State of U.P. [(2010) 7 SCC 781 : AIR 2010 SC 2275] following the judgment in Gullapalli Nageswara Rao [Gullapalli Nageswara Rao v. A.P. SRTC, AIR 1959 SC 308] , held that : (Rasid Javed case [(2010) 7 SCC 781 : AIR 2010 SC 2275] , SCC p. 796, para 51) "51. ... a person who hears must decide and that divided responsibility is destructive of the concept of judicial hearing is too fundamental a proposition to be doubted."
19. A similar view has been reiterated by this Court in Automotive Tyre Manufacturers Assn. v. Designated Authority [(2011) 2 SCC 258] , wherein this Court dealt with a case wherein the designated authority (DA) under the relevant statute passed the final order on the material collected by his predecessor-in-office who had also accorded the hearing to the parties concerned. This Court held that the order stood vitiated as it offended the basic principles of natural justice.
20. In view of the above, the law on the issue can be summarised to the effect that the very person/officer, who accords the hearing to the objector must also submit the report/take decision on the objection and in case his successor decides the case without giving a fresh hearing, the order would stand vitiated having been passed in violation of the principles of natural justice."
13. Learned senior counsel further relies upon the judgment in the case of Kishan Chand Vs Gaon Sabha, Bharthal and Others, reported as 2007 (4) 18 (Delhi) 133. By relying upon the said judgment, it is contended that under Rule 170 of the Delhi Land Reforms Rules, 1954, before finalising a demarcation, an objector must be given an opportunity to lead evidence. Thus, it is submitted that in the present case, the demarcation has been carried out without granting any hearing to the petitioners, which cannot be acted upon.
Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL W.P.(C) 11909/2022 & 11933/2022 Page 5 of 8 Signing Date:07.03.2023 19:21:14Neutral Citation Number: 2023/DHC/001725
14. Learned counsel appearing on behalf of the respondents on the other hand, opposes the present writ petition. He submits that in the present case, the petitioners have challenged only the demolition orders. He submits that demarcation orders have not been challenged before this Court. He further submits that the present Court is not the authority for the purpose of challenge of any demarcation report.
15. I have heard learned counsels for the parties and have perused the record.
16. Perusal of the impugned orders dated 04.08.2022 and 05.08.2022 clearly show that demolition orders have been passed against the petitioners, wherein reference is made to a demarcation having been carried out by the Revenue Authorities.
17. As per the submission of learned senior counsel for the petitioners, no hearing was granted to the petitioners at the time of carrying out the said demarcation by the Revenue Authorities.
18. Any order for demolition on the basis that there is an encroachment by the petitioners, can be passed only if it is firmly established beyond doubt that the petitioners have actually carried out any encroachment. It is the contention of the petitioners that no hearing was granted to them at the time of the demarcation. Considering the contention of the petitioners that the land which is occupied by them is under their ownership and that there is no encroachment carried out on their behalf, it is deemed expedient to give liberty to the petitioners to challenge the demarcation as carried out by the respondents.
19. Liberty is granted to the petitioners to challenge the Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL W.P.(C) 11909/2022 & 11933/2022 Page 6 of 8 Signing Date:07.03.2023 19:21:14 Neutral Citation Number: 2023/DHC/001725 demarcation report. The petitioners would be at liberty to raise all objections with respect to the demarcation report under question.
20. At the time of deciding any objections by the respondents to the demarcation report, it is directed that personal hearing shall be given to the petitioners. Further, the petitioners would also be granted liberty to adduce any documents in their favour, that the occupation of the petitioners is not an encroachment by them. All the documents as submitted by the petitioners may be taken into consideration by the Revenue Authorities at the time of deciding the objection of the petitioners.
21. It is noted that by order dated 18.08.2022, this Court had granted status quo with respect to the possession and construction of the land in question. In view thereof, it is directed that pending the objections by the petitioners to the demarcation proceedings of the respondents, status quo be maintained with respect to possession and construction of the petitioners' land.
22. The petitioners are directed to file their objections before the Revenue Authorities within a period of four weeks. The respondents are directed to decide the objections of the petitioners to the demarcation proceedings expeditiously, preferably within a period of six months from today.
23. In view thereof, the impugned orders dated 04.08.2022 and 05.08.2022 issued by SDM, Kapashera are hereby quashed.
24. Needless to say, the respondents have liberty to take appropriate proceedings after deciding the objections, as may be raised by the petitioners to the demarcation proceedings.
Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL W.P.(C) 11909/2022 & 11933/2022 Page 7 of 8 Signing Date:07.03.2023 19:21:14Neutral Citation Number: 2023/DHC/001725
25. The present writ petitions are disposed of in the aforesaid terms. All pending applications are also disposed of accordingly.
MINI PUSHKARNA, J MARCH 03rd, 2023 c Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL W.P.(C) 11909/2022 & 11933/2022 Page 8 of 8 Signing Date:07.03.2023 19:21:14