Delhi High Court
Shri Moolchand Gaur vs Delhi Development Authority And Ors. on 21 August, 2002
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul
JUDGMENT Sanjay Kishan Kaul, J.
1. Two writ petitions have been filed by the petitioner who is residing in Madhu Vihar, I.P. Extension, Mandawali Fazalpur, Shahadara, Delhi. The colony in question is unauthorised colony. Petitioner in CW No. 4873/1999 is occupying the property bearing No. A-141 and A-142 measuring 150 square yards falling in khasra No. 1379/89 while in CW No. 6424/1998 he is occupying the property No. C-4 measuring 300 square yards falling in khasra No. 94. Both the properties have been acquired in pursuance to an agreement of sale on power of attorney but there is no registered document of title. The petitioner has stated in the writ petitions that though he was lawful and bona fide purchaser in possession, the respondents are threatening to demolish the properties of the petitioner on the ground that it is located in an unauthorised colony. It is further stated that 1071 unauthorised colonies have been recommended for regularisation and that Madhu Vihar is one of the colonies. The colony is sated to be electrified. It is further stated that the colony is 90 to 100% built up.
2. In the counter affidavit filed by respondent No. 1 DDA in CW No. 6424/1998, it is stated that the petitioner under the garb of claiming ownership over a part of khasra No. 94 is actually trying to encroach in Khasra No. 93 which stand acquired and placed at the disposal of DDA and is lying vacant at site. It is further stated that khasra in question was acquired vide award No. 49C/70-71 and the land was placed at disposal of DDA vide notification under Section 22(1) of D.D.A. Act bearing No. F9 (30) 76 L & B dated 30.3.1983. The vacant piece of land was sough to be protected by fencing the land in question which is stated to have been objected to be the petitioner and the interim orders passed in the present writ petition were produced at that stage. It is further stated that even khasra No. 94 stands acquired and placed at the disposal of the DDA at 30.3.1983. It is further stated that there is no move to have any demolition action on khasra No. 94.
3. Learned counsel for the petitioner contends that in view of the fact that the matter in controversy relates to regularisation of the unauthorised colonies which is pending consideration and that the colony of the petitioner is of 1071 colonies, there cannot be any attempt of pick and chose action. Learned counsel for the petitioner further draw strength from the order of the Division Bench passed in CW No. 4771/1993 on 17.8.1998 where the issue of regularisation of such unauthorised colonies was being dealt with. The Division Bench observed as under:
"In respect of the colonies on the Government land and other colonies which are not be regularised for one reason or the other, it is high time that the Government takes a definite decision. Over the years we have passed repeated orders impressing upon the Government that the result of not taking decision is resulting in corruption at various levels. We are not suggesting for the present. Whether a particular colony shall be regularised or not but what we are directing is to take a definite decision to its logical end by demolition house and not merely demolition of only few selected house but the colony as a whole."
4. Learned counsel for the petitioner further contends that no Building Bye-laws applied in the area in question and thus there cannot be any restriction on the petition.
5. Learned counsel for respondent No. 1 on the other hand contends that there is no right vests in the petitioner to get the relief as claimed in the petitions and that as set out in the counter affidavit in CW No. 6424/1998, the attempt of the petitioner therein is to encroach upon the open areas under the pretext that the matter is pending consideration before the competent authorities in respect of the regularisation.
6. Learned counsel for the respondent has referred to the judgment of the Supreme Court in Balmokand Khatri Educational And Industrial Trust, Amritsar v. State of Punjab and Ors. , , where it was held that it was difficult to take physical possession of land under compulsory acquisition and thus the normal mode of taking possession is drafting the panchnama in the presence of panchas and taking possession and giving delivery to the beneficiaries which is the accepted mode of taking possession of land and subsequent thereto the retention of possession would tantamount only to illegal or unlawful possession. It was held that merely because a person retained the possession of the acquired land, the acquisition cannot be said to be bad in law.
7. Learned counsel for the respondent thus contends that mere fact that even after acquisition proceedings the petitioner has continued to occupy the land in question though the land had been placed at the disposal of the respondent authority would not give any right to the petitioner since his possession would be illegal and unlawful.
8. Learned counsel for the respondent has also referred to the judgment of the learned Single Judge of this Court in Ashok Nagar Welfare Association v. Union of India and Ors. , . In this case the writ petition was filed for regularisation of the colony. It was observed that the acquisition proceedings had already been upheld by the Court in a separate writ petition and that the policy of leaving out from the acquisition built up area has also been repelled in another Division Bench decision of this Court in Shri Bhagwan and Anr. v. Union of India and Ors. 1991 (2) Delhi Lawyers 59 and affirmed by the Full Bench of this Court in Roshanara Begum v. Union of India , 1996 (1) AD (Delhi) 6, against which the appeal was dismissed by the Supreme Court. The writ petition was dismissed though it was stated that the same would not debar the petitioner from raising the plea of regularisation of the colony before the appropriate authority or authorities as constituted for the said purpose.
9. I have considered the rival submissions advanced by the learned counsel for the parties. There is no dispute on the factual matrix to the extent that the land in question stood acquired and the land was handed over to the DDA under Section 22(1) of the Act and stood vested with respondent DDA. However, the land in question is occupied by the occupants where an unauthorised colony exists. The question of regularisation of the unauthorised colonies which form a part of the list of 1071 unauthorised colonies is pending consideration before the competent authority and despite the observation of the Division Bench in CW No. 4771/1993 no final decision has been taken. The Division Bench has noted that in case colonies are not to be regularised then the matter should be taken to its logical end by demolition but selected demolition should not be done.
10. There is however, no doubt about the proposition that the petitioner as such has no right as the land stands acquired and vested with respondent DDA. The continued possession of the petitioner is undoubtedly illegal and unlawful as held by the Supreme Court in Balmokand Khatri Educational And Industrial Trust's case (supra).
11. Specific allegations have been made in CW No. 6424/1998 that under the garb of the interim orders passed by this Court the petitioner is trying to encroach upon certain open areas which stood acquired. It is further stated that the issue of regularisation is pending consideration which cannot give a license to the occupants to construct at will or encroach upon the open areas. The respondent authorities are well within their rights to protect the open areas whether by construction of boundary wall or in whatever manner it deems appropriate. This is specially so as the land vests with the respondent authorities.
12. In view of the aforesaid, I am of the considered view that the writ petitions are liable to the disposed of with the following directions :
1) It is open to the respondent authorities to protect all open areas of land by fencing or otherwise and the petitioner and other occupants have no right to interfere with the same.
2) The petitioner or any occupants shall not carry on any construction on the property in question specially so as the land in question stand acquired and vested with the respondent authority though the issue of regularisation is pending consideration.
3) The petitioner shall not create any third party interest or part with possession of the properties.
4) The petitioner shall file an undertaking in terms of para 2 and 3 above within one week in this Court Along with a plan of existing construction..
5) The respondents, however, will not act in a pick and chose manner in picking up any particular property for demolition since consistent view has to be taken in this behalf as observed by the Division Bench in CW No. 4771/1993 dated 17.8.1998. It is however made clear that this will not prevent respondent from taking action wherever any attempt is made to carry out any further construction or encroach upon any open areas of the land.
13. The writ petitions are disposed of with the aforesaid directions leaving the parties to bear their own costs.