Ali Zakariya vs DDA

V.K. Jain, J.—The case of the petitioner is that he is the owner in possession of property bearing No. 168/1, measuring 80 square yards in Village Begumpur, Abadi Hauz Rani Village, Delhi-110007, forming part of Khasra No. 349/272, measuring 1 bigha and 10 biswas of Village Begumpur, Delhi. Initially, the land comprised in Khasra No. 349/272 was owned by Hamid Khan, S/o. Dalshera and Mal Khan, S/o. Imam Khan and the position was so reflected in Jamabandi for the year 1948-49. The names of the cultivator were shown as Hamid Khan Azam Khan and Samadal Khan, sons of Mehmood Khan. The aforesaid land has been described as non-cultivable house in the said jamabandi. The said land was acquired by the Court for displaced persons vide offer No. 1000-A, being unutilized land and was placed at the disposal of DDA vide notification No. F-9(22)78/L & B dated 22.02.1979. The learned counsel for the respondent referring to Offer No. 1000-A submits that declaration u/s 3 of the Settlement of Displaced Persons Acquisition Act, 1948 was made by Chief Commissioner, Delhi vide notification dated 13.09.1948, the possession of some part of the land was taken on 04.07.1959 while the possession of the remaining part was taken on 27.09.1949. Khasra No. 349/272, measuring 1 bigha and 10 biswas was part of Offer No. 1000-A. In the later revenue records filed by the petitioner, the ownership of the Government has been recorded in respect of the land comprised in Khasra No. 349/272. It is an admitted position before me that the ownership of the land in question comprised in Khasra No. 349/272 vested in the Government and later on, the aforesaid land was placed by the Government at the disposal of DDA.

The case of the petitioner is that he has been in possession of property in question for last more than 20 years. Reliance in this regard has been placed by the petitioner on the record of MCD showing assessment of Property No. 168/1, Hauz Rani for the purposed of property tax. Electricity and water connections have also been obtained by the petitioner at the aforesaid address. A licence for running an oil depot was also issued to the petitioner on 04.04.1992 at the address 168/1, Hauz Rani, Malviya Nagar.

The learned counsel for the respondent states that though the petitioner may have in possession of some built up property in village Hauz Rani, he had encroached upon land which was lying vacant in the said village and was made for being used as a park and that the said encroachment and construction is a recent one, not protected by National Capital Territory of Delhi Laws (Special Provisions) Act, 2011.

The petitioner has not placed on record notices received from MCD u/s 124/126 of DMC Act when the property occupied by him in the village Hauz Rani was assessed to property tax. Had such notices been filed, they could possibly have given extent of the land and construction which was assessed to property tax by MCD. This is also not the case of the petitioner that land in question is the only property occupied by him in Khasra No. 349/272 of Village Begumpur. The petitioner, who is present in the Court, states that their family occupies the whole of the land comprised in Khasra No. 349/272 of village Begumpur. This, however, is refuted by the learned counsel for the respondent who states that the land in respect of which they are seeking to take action for demolition and removal of encroachment was encroached and built up only recently.

In a writ petition, it is not possible for the Court to go into disputed questions of fact which may require recording and appreciation of the evidence. The Court is not in a position to ascertain as to what was the extent of the land which was assessed by MCD to property tax and which was comprised in Khasra No. 349/272 of village Begumpur. The Court is not in a position to verify as to whether the land in question was encroached upon and built up by the petitioner prior to or on or after 08.02.2007. If it has been encroached and/or built after 08.02.2007, it does not enjoy statutory protection under National Capital Territory of Delhi Laws (Special Provisions) Act, 2011. In these circumstances, the appropriate course of action would be to remit the matter back to DDA to hear the petitioner, consider such documents as he may choose to produce in support of his case and then pass a speaking order, identifying the land, if any, encroached or constructed by the petitioner on or after 08.02007. Accordingly, the petitioner is directed to submit a reply to Director (Land Management) of DDA within a period of two weeks from today, placing his case before him along with such documents as he may like to produce in support of his case. He shall also appear for the purpose of hearing by the said Director at 3.00 PM on 27.05.2013 in his office at Vikas Sadan, New Delhi. Director (Land Management) shall pass an appropriate order in the matter within two weeks from hearing the petitioner. It is made clear that no further opportunity of hearing shall be granted by Director (Land Management) to the petitioner. DDA shall be entitled to take such action as is available to it in law in respect of the land found to have been encroached and/or constructed on or after 08.02.2007. It shall also be open to the petitioner to assail the order of the Director (Land Management) in case he is aggrieved from such an order, by availing such remedies as are open to him in law in this regard.

The writ petition stands disposed of. No order as to costs.