Pavit Singh vs Union of India and Ors

M.A. No. 14/2020

This is yet another case where the respondent authorities are not serious in protecting the water bodies from encroachments.

Earlier the applicant had filed an original application (682/2016) which was decided on 13.10.2017 with the direction to SDM/Competent Authority to decide the objections within three weeks from that day and pass orders/directions for protection of the pond, in accordance to law.

Thereafter, an execution application(45/2017), in respect of the order dated 13.10.2017 was filed by the applicant and it was ordered that:

"Learned Counsel appearing for the NCT of Delhi submits that they would comply with the order of the Tribunal dated 13.10.2017 as expeditiously as possible in any case not later than three weeks from today. We make it clear that this is a last opportunity if now appropriate steps are not taken in compliance thereto, the concerned officer shall be liable to be proceeded in accordance with law."

Accordingly, the execution application 45/2017 was disposed of on 13.12.2017.

Another original application (210/2019) was filed by the applicant for removal/demolition of illegal encroachments from the water bodies falling in khasra no. 200/2, admeasuring 1 bigha 13 biswa in village Saidulajab, New Delhi and to construct boundary wall around it so as to protect the same for the times to come.

In this original application notices were issued to the opposite parties and in response to it, a status report was filed by respondent nos. 4 and 5 i.e. Government of NCT of Delhi and Deputy Commissioner stating that the land in question is a forest land. However, on subsequent date of hearing i.e. 25.11.2019, the Learned Counsel for the respondent submitted that an order has been passed by the Hon'ble Supreme Court of India in Writ Petition No. 13029/1985 on 04.11.2019, wherein it has been observed, at internal page 10, that no demolition and construction activity shall takes place. It was stated on behalf of the respondents that notices were issued by them to the encroachers for the purpose of removal of encroachments, in compliance of the order of the Tribunal. But they are unable to take further steps because of the aforesaid order of the Hon'ble Supreme Court.

Therefore, the Tribunal ordered that the applicant may seek appropriate orders from the Hon'ble Supreme Court or as and when the order dated 04.11.2019 is clarified, in respect of the present case. The respondents were directed that they would thereafter proceed with regard to the encroachments in this case and file a compliance report before the Tribunal. Accordingly, the original application no. 210/2019 was disposed of.

Subsequent to it, the applicant has filed instant misc. application (14/2020) mentioning therein that the Hon'ble Supreme Court had passed an order on 09.12.2019 (Annexure 4-A). Therefore, the applicant prayed that the respondent should resume the demolition drive of khasra no. 200/2 so as to remove illegal encroachments.

On this application notices were issued to Government of NCT of Delhi- respondent no. 4 and South Delhi Municipal Corporation- respondent no. 6. On service of notices, a compliance/status report was filed by SDM, Saket, on behalf of State of Delhi, mentioning therein (para 4) that encroachments on land, approximately 8 biswa, has not been removed. The reason given was that the department does not have equipment in this regard and necessary directions be given to South Delhi Municipal Corporation for taking necessary steps of demolition. Such a reason, on the face of it, was erroneous because an authority of the State Government is asking for equipments from Municipal Corporation instead of arranging the same themselves. Therefore, it was observed by the Tribunal on 26.02.2020 that the State is trying to shift the responsibility of compliance of the order of the Tribunal to other authority whereas it was their primary duty to do it. In such a situation, the District Magistrate, South (Saket) was directed to ensure that remaining encroachments are removed immediately and he shall make all arrangements including equipments required for the said action. A compliance report was to be sent by the District Magistrate by 02.03.2020, therefore, a status report, purporting to have been filed in compliance of the order dated 26. 02.2020. After having perused the said report as well as the documents annexed to it, we deemed it proper to call Sub Divisional Magistrate, Saket on the next date of hearing. The status report dated 03.03.2020 filed by District Magistrate (South) states, inter-alia, that a fresh demolition notice was issued on 26.02.2020 for removal of encroachments of the remaining area (8 biswas) of khasra no. 200/2 (1 bigha and 13 biswa). Further, it states that when directions were given to all encroachers/unauthorized occupants of khasra no. 200/2 to remove that encroachments from the forest land within two days as the demolition drive for removal was fixed on 2.03.2020.

It is also mentioned in the report that during service of the demolition notice at the site some persons had approached the office of the SDM on 27.02.2020 and submitted representation/objection along with an order dated 20.01.2020 passed by the Hon'ble High Court of Delhi in the case of Smt. Promila vs. Union of India (C.W. 708/2020). Thereafter, a copy of the order passed by the High Court on 20.01.2020 is said to have been obtained. In compliance of the order of the High Court, notices were issued to all the concerned parties with a direction to appear in person or through pleader before the SDM, Saket along with their representations and revenue record within 48 hours, from receipt of the notice so that the direction issued by the High Court can be complied with. It is also stated in the report that it is difficult to carryout the direction given by the Tribunal because of intervening order of the High Court.

We have perused the order passed by the High Court on 20.01.2020 which specifically relates to house of the petitioner (Smt. Promila) which is stated to be built in Khasra No. 171 of 02 (02 Bigha 10 Biswa) of Village Saidulajab. A reply to the demolition notice dated 26.02.2020 states that demolition notice is with regard to Khasra No. 200/02 whereas the house of the applicant falls in Khasra No. 171 and other private land of Village Saidulajab.

It is significant to note here that the notice dated 26/27.02.2020 issued by SDM, Saket states that in compliance of the order of the High Court, the parties should appear in person or through pleader along with documents within 48 hours from receipt of the notice but it does not mentions about the property in question nor it specifically identifies by giving Khasra No. etc about the property sought to be demolished. On the contrary, the earlier demolition notice given by SDM, Saket on 21.11.2019 captioned as 'Joint Survey-Cum-Demolition Notice' specifically mentions about the land in question as khasra no. 200/2 (1 bigha 13 biswa) forest land of Village Saidulajab. Moreover, the copy of the Writ Petition filed by Smt. Promila before the High Court of Delhi (Annexure R/3) clearly states in ground IV that the property of the petitioner shall be removed under the garb of the said demarcation proceedings whereas the property of the petitioner is built upon Khasra No. 171/2 and not on Khasra No. 200/2, Saidulajab, New Delhi. In other words, the encroachment is on Khasra No. 200/2 as mentioned in the first demolition notice issued by the SDM on 21.11.2019 as well as 26.02.2020 but the last notice given by the SDM Saket on 27.02.2020 without giving the Khasra number prima facie shows that the omission of the Khasra number is deliberate whereas the relevant record and the earlier notices clearly specified that it is Khasra No. 200/02.

Therefore, before passing appropriate orders in view of the aforesaid facts and circumstances and deliberate omissions on the part of respondent, we issue a show cause notice to Mr. Rakesh Kumar, SDM, Saket so as to offer an opportunity of hearing to explain as to why compliance of the order of the Tribunal was not made by him despite of several opportunities and the identity of the land on which the encroachment had been made was mentioned in his last notice of 27.02.2020. The explanation be filed within 15 days from today and he shall remain present on the next date of hearing.

List the matter on 30th March, 2020.