Delhi High Court - Orders
Sh. Vikram Khatri vs Govt. Of Nct Of Delhi & Ors on 19 December, 2023
Author: Anup Jairam Bhambhani
Bench: Anup Jairam Bhambhani
$~34
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 16426/2023
SH. VIKRAM KHATRI ..... Petitioner
Through: Mr. V.P. Rana, Advocate.
versus
GOVT. OF NCT OF DELHI & ORS. ..... Respondents
Through: Mr. Rishikesh Kumar, ASC-GNCTD
with Ms. Sheenu Priya, Mr. Sudhir
Kumar Shukla, Mr. Sudhir, Mr. Sumit
Choudhary and Mr. Atik Gill,
Advocates for GNCTD.
Mr. Sanjeev Sabharwal, Standing
Counsel with Ms. Shweta, Advocate
for MCD.
CORAM:
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
ORDER
% 19.12.2023 CM APPL. 66148/2023_(Exemption) Exemption granted, subject to just exceptions.
Let requisite compliances be made within 01 week.
The application stands disposed of.
W.P.(C) 16426/2023 & CM APPL. 66147/2023 By way of the present petition filed under Article 226 of the Constitution of India, the petitioner seeks a direction for quashing demarcation plan dated September 2023, stated to have been drawn-
This is a digitally signed order. W.P.(C) 16426/2023 Page 1 of 6The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 23/12/2023 at 00:27:56 up by/with the participation of the revenue officials. The petitioner further seeks a direction against the respondents to act in accordance with law. The petitioner also seeks an order restraining respondent No.3/Municipal Corporation of Delhi („MCD‟) from demolishing their houses, in the guise of removing alleged encroachments.
2. Mr. V.P. Rana, learned counsel appearing for the petitioner submits, that the petitioner has been in possession and occupation of house bearing No. 1036-E, Panna Paposian situate in Khasra No. 53/11 in Village : Narela, Delhi ad-measuring about 2 bigha 5 biswa („subject property‟) for decades. It is submitted that the petitioner has also been duly paying municipal taxes in respect of the subject property.
3. Mr. Rana submits that on 06.12.2023, certain officials from the MCD visited the petitioner and informed him that they were contemplating demolition of the subject property; and that therefore the petitioner should remove himself and his belongings therefrom. Mr. Rana submits that representation dated 07.12.2023 made to the MCD in this behalf has remained unanswered. A copy of the representation has been appended as Annexure P-18 to the petition.
4. The grievance is that in the guise of removing encroachments from what the respondents claim is a water body, the MCD has issued the threat of demolition of the subject property, claiming that the same is encroaching upon public/government land situate in Khasra No. 396.
5. Mr. Rana argues that the MCD is purporting to proceed on the basis of the demarcation plan, a copy of which has been appended as Annexure P-19 to the petition, drawn-up by the revenue authorities sometime in September 2023, whereas Village : Narela already stood This is a digitally signed order. W.P.(C) 16426/2023 Page 2 of 6 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 23/12/2023 at 00:27:56 urbanised vide notification dated 20.11.2019 issued under section 507(a) of the DMC Act, 19571. It is accordingly argued that in view of the verdict of the Supreme Court in Mohinder Singh (Dead) Through LRs and Another vs. Narain Singh and Others2 and of the Delhi High Court in Kamaljeet Bajwa & Ors. vs. Government of NCT of Delhi & Ors.3, post-urbanisation, the revenue officials had ceased of have jurisdiction over the land and therefore had no authority to draw-up the demarcation plan of September 2023.
6. Mr. Rana further submits that demarcation plan dated September 2023 has been drawn-up behind the petitioner‟s back and without the petitioner having participated in that process, in any manner whatsoever. It is pointed-out, that as is evident from the documents filed on record, there is also a discrepancy as to whether the subject property fall within Khasra No. 53/11 or Khasra No. 396. It is the petitioner‟s contention that his property does not fall within Khasra No. 396 and though the MCD states that it is contemplating action against properties in Khasra No. 396, at the same time they are threatening demolition of the subject property which lies within Khasra No. 53/11.
7. That apart, Mr. Rana submits that the subject property is protected by the National Capital Territory of Delhi Laws (Special Provisions) Second Act 2011 („2011 Act‟), which stands extended upto 31.12.2023; and that the legislative process for its further extension is 1 at Serial No. 16 of the notification 2 2023 SCC OnLine SC 261 3 2023 SCC Online Del 4192 This is a digitally signed order. W.P.(C) 16426/2023 Page 3 of 6 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 23/12/2023 at 00:27:56 already underway. It is argued that the MCD itself is terming the subject property as an „encroachment‟; and the subject property is therefore covered by section 2(c) read with section 3 of the 2011 Act. It is pointed-out that section 3(1)(c) as well as section 3(2)(ii) mandate that any enforcement action in relation to such properties is to be kept in abeyance and status quo is to be maintained with regard inter-alia to properties in the village abadi area. Counsel submits that the subject property fall within the village abadi area and is hence protected by the 2011 Act.
8. It is accordingly submitted that any enforcement action on the part of municipal authorities against the subject property, be kept in abeyance.
9. Issue notice.
10. Mr. Sanjeev Sabharwal, learned Standing Counsel appears on behalf of respondent No. 3/MCD on advance copy; accepts notice; and seeks time to file counter-affidavit.
11. Mr. Sabharwal submits that the MCD is only taking action for removal of encroachments from the water body, which is situate within Khasra No. 396 in Village : Narela; and if the petitioner‟s property does not fall within that khasra, the petitioner is not at risk. On being queried, he confirms that no action is being contemplated against any property in Khasra No. 53/11.
12. Mr. Sabharwal however disputes that the petitioner‟s property is protected under the provisions of the National Capital Territory of Delhi Laws (Special Provisions) Second Act 2011. In this behalf counsel draws attention to section 4 of the 2011 Act, to point-out that This is a digitally signed order. W.P.(C) 16426/2023 Page 4 of 6 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 23/12/2023 at 00:27:56 no relief is available under section 3 of that statute in respect of the encroachments or unauthorised development inter-alia on „public land‟.
13. In response Mr. Rana submits that section 4(a), to which reference is made by Mr. Sabharwal, further proceeds to exclude from its operation " .....those cases which are covered under clauses (a) and
(c) of sub-section 1 of section 3 .....", pointing-out that the petitioner‟s property is covered by section 3(1)(c) since it is situate within the village abadi area.
14. Let counter-affidavit be filed within 06 weeks; rejoinder thereto, if any, be filed within 04 weeks thereafter; with copies to the opposing counsel.
15. On a prima-facie view of the matter, it is evident that there is a dispute as to the very contours of Khasra Nos. 53/11 and 396, not to mention the doubt as to whether the subject property falls, wholly or partly, within Khasra No. 53/11 or within Khasra 396. The MCD‟s own stand is that no action is being contemplated in respect of any property within Khasra No. 53/11 but only against encroachments within Khasra No. 396.
16. Moreover, on a plain reading, it does appear that the National Capital Territory of Delhi Laws (Special Provisions) Second Act, 2011 provides an almost blanket protection to properties covered by that Act against removal of encroachments and/or unauthorised construction; which protection appears to cover the subject property, which is claimed to be falling within the village abadi area.
This is a digitally signed order. W.P.(C) 16426/2023 Page 5 of 6The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 23/12/2023 at 00:27:56
17. Moreover, in the circumstances obtaining in the matter, the MCD cannot be permitted to demolish a residential house/dwelling unit when the very identity and location of the property is unclear.
18. In view of the above, the MCD is restrained from taking any action against the subject property, including the demolition of any structures therein and/or removal of the petitioner from the same, till the next date of hearing.
19. Re-notify alongwith W.P. (C) No. 16167/2023 on 29th April 2024.
ANUP JAIRAM BHAMBHANI, J DECEMBER 19, 2023/ak This is a digitally signed order. W.P.(C) 16426/2023 Page 6 of 6 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 23/12/2023 at 00:27:57