Abdul Aziz vs D.D.A.

Hima Kohli, J.—The present writ petition was filed by the petitioner in the year 1997, praying inter alia for issuance of a mandamus to the respondent, to allot an alternate industrial plot to the petitioner, in lieu of existing premises No. 519-A, Dilshad Garden, Delhi under the scheme of Relocation of Industries. The petitioner had also sought directions to the respondent to allot 400 sq. yds. of land in Khasra No. 446/443, Revenue Estate Jhilmil, Tahirpur, Delhi after de-notifying the same from the acquisition proceedings.

It is the case of the petitioner that he is the owner and in possession of plot measuring 4,250 sq. yards, bearing No. 519-A/1, Dilshad Garden, Delhi and that he has been paying municipal tax, electricity and water bills in respect of the aforesaid premises. Counsel for the petitioner submits that the petitioner is running a business of manufacturing paint brushes at the aforesaid plot. On 18.3.1980, the respondent/DDA issued a letter to the petitioner informing him that in case the petitioner was interested in shifting his industry from the aforesaid location to an alternative location in some other industrial area, he may file an application. It was however clarified in the said letter that the invitation to file an application would not be treated as a commitment for allotment.

On receipt of the aforesaid letter, the petitioner filed an application with the respondent/DDA on 26.3.1980. Thereafter, the petitioner did not hear from the respondent despite repeated representations. It is contended on behalf of the petitioner that in the meantime, four persons claiming to be officers of the respondent came to his premises on 17.1.1997 and threatened him with dispossession, thus compelling him to file the present writ petition.

Notice was issued in the present writ petition on 29.1.1997 and on the very same day, on an interim application filed by the petitioner, status quo order was directed to be maintained regarding possession of the premises in question. The aforesaid status quo order was confirmed on 12.11.1997 when the writ petition was admitted to regular hearing. Thereafter, in the year 2004, the petitioner filed an application seeking to amend the writ petition on the basis of certain averments made by the respondent in its counter affidavit filed in the year 2003. The said application was allowed and the amended writ petition was taken on the record. In the amended writ petition, the petitioner sought additional reliefs as prayed for in prayers (iii) to (v), which included a direction to the respondent/DDA to allot 400 sq. yards of land in the same Khasra, after de-notifying the same from acquisition proceedings.

Counsel for the respondent states that the land involved in the present writ petition is part of Khasra No. 446/443, situated in the Revenue Estate Jhilmil, Tahirpur, Delhi, measuring 4 bighas 17 biswas (equivalent to 4850 sq. yrds.). She submits that the entire land of the above Khasra was acquired by the Land & Building Department, vide Award No. 61/1972-73 and placed at the disposal of the DDA, vide notification dated 13.12.1977. On 17.11.1994, a parcel of land measuring 12 biswas (equivalent to 600 sq. yards), out of the aforesaid land measuring 4 bighas 17 biswas, was de-notified. The land that was de-notified comprises of one Masjid and one factory which, the petitioner claims is still under his occupation. Insofar as the parcel of land measuring 4 bighas 5 biswas, apart from the aforesaid 12 biswas is concerned, the same is stated to have been de-notified from the purview of acquisition, and physical possession thereof was taken over by the Land Acquisition Collector u/s 16 of the Land Acquisition Act and the same is stated to be in their possession even today.

It is stated on behalf of the respondent that some persons including the petitioner herein trespassed on the above land and were removed therefrom in the year 1977, and that the petitioner was allotted alternate residential plots bearing No. 15/235 and 15/236 at Trilokpuri, Delhi. Counsel for the respondent further submits that in the year 1977, a general clearance drive that was undertaken by the respondent to remove unauthorized encroachment on Government land, and in the said drive, the petitioner as well as his son were removed from Government land. In the year 1995, the respondent undertook another general clearance drive and found that the petitioner had re-encroached on the Government land and had in turn given the premises on rent to different persons. The respondent carried out the demolition programme on 23.8.1995 and reclaimed an area measuring about 3,500 sq. yrds after removal of commercial structures therefrom. The said reclaimed area was duly fenced to protect the land from encroachment. Thus, it is stated that the petitioner is no longer in occupation of any part of the land measuring 4 bighas 5 biswas, in Khasra No. 446/443.

With regard to the claim of the petitioner for entitlement to an alternate industrial plot, it is stated on behalf of the respondent that though a scheme was floated to allot industrial plots to units running in Dilshad Garden, Shahdra Zone, the said scheme was not finalized due to some technical reasons and the same was closed down in the year 1989. W.P.(C) 360/1997 Page 5 of 8

Counsel for the respondent contends that even otherwise, the petitioner is not entitled to make a claim for any alternate allotment of plot because the respondent has already acceded to the request of the petitioner for de-notification of land measuring 12 biswas out of 4 bighas 17 biswas, acquired earlier, from the purview of acquisition, which includes the factory being run by the petitioner therefrom.

It is further stated that the petitioner has approached this Court with unclean hands as he has failed to inform the Court that there were certain other litigations that were initiated by 3 persons, namely, Mr. Jaffar Siddique, Mr. Vakil Ahmed and Mr. Liaqat Ali, by filing three independent writ petitions in this Court against the DDA, registered as WP(C)No.3843, 4340 and 4341/1996, wherein the aforesaid persons claimed to have come into possession of some land, part of the same plot i.e. Khasra No. 446/443, Revenue Estate Jhilmil, Tahirpur, Delhi.

A perusal of the common judgment dated 29.5.2003 passed in the three writ petitions preferred by the aforesaid three persons shows that the learned Single Judge took into consideration the stand of the petitioners therein that they were occupying the properties prior to the year 1980 and in the absence of compliance of the requirement of the provisions of Sections 4 & 5 of the Public Premises Act, no order of demolition/removal could be passed, and held that the petitioners were not entitled to any protection under the Public Premises Act and the proceedings therein and were liable to be evicted as they had no right, title or interest in the land. It was observed that the general principles of trespasser cannot apply to such persons who occupy public land which is acquired after fulfilling the requirements of the Land Acquisition Act. With these observations, the writ petitions were dismissed.

Aggrieved by the aforesaid judgment, the petitioners therein preferred three appeals, registered as LPA Nos. 447, 443 and 448/2003, which were dismissed by the Division Bench, vide order dated 17.9.2003. In the said appeal, reference was made to the rejoinder filed by the aforesaid appellants in their writ petitions to the effect that despite the land acquisition proceedings having taken place and after compensation being paid, possession had never been taken by the DDA and rather, the DDA in collusion with Shri Abdul Aziz, the petitioner in the present case, was permitted to encroach upon more and more lands. The Division Bench, however, turned down the aforesaid plea and held that the authorities were competent to exercise the powers conferred on them for taking possession of the land in question, if necessary with the assistance of the police, but the appellants being unauthorized occupants, could not be held to be entitled to occupy the land.

It is also pertinent to note that the decision of the Division Bench dated 17.9.2003 was taken in appeal before the Supreme Court, but was dismissed, vide order dated 13.10.2003. It is also relevant to note that the land in question is the same which is the subject matter of the present writ petition which was acquired through the Award No. 61/1972-73 and was placed at the disposal of the DDA. The aforesaid facts are taken note of only to emphasize the fact that claims have been made by various parties, and now the petitioner herein, in respect of the same land, which were turned down by the learned Single Judge and upheld by the Division Bench and the Supreme Court in the cases referred to herein above. Hence, the judgment dated 29.5.2003 passed by the learned Single Judge has attained finality.

The prayer of the petitioner for claiming de-notification of 400 sq.yds. of land out of the land already acquired and vested in DDA as early as in the year 1977, is mis-conceived and cannot be entertained. The plea of the petitioner for an alternate allotment of an industrial plot of land is also devoid of merits, particularly, since at the request of the petitioner to denotify a part of the land measuring 12 biswas out of the parcel of land measuring 4 bighas 17 biswas, was not only accepted by the authorities, but the said land was de-notified and remains in the possession of the petitioner.

Counsel for the respondent contends that a part of the aforesaid land measuring 6 biswas out of 12 bighas 4 biswas is urgently required for the purpose of road widening. She submits that the said parcel of land which had been de-notified from acquisition, has been renotified under Land Acquisition Act, vide notification dated 13.9.2007 and a declaration has also been issued on 22.4.2008, u/s 6 of the Land Acquisition Act. This aspect of the matter is not a subject matter of consideration before this Court as the scope of the writ petition is confined to examining the claim of the petitioner for allotment of an alternate industrial plot and for de-notification of 400 sq. yrds. of land from out of the acquired land measuring 4 bighas 5 biswas out of Khasra No. 446/443.

In view of the aforesaid facts and circumstances, the relief sought by the petitioner in the present writ petition is declined. The writ petition is dismissed.

The parties are left to bear their own costs.