Decided on August 06,2007



J.M.MALIK,J. - (1.) THE appellant, Manoj Kumar, is stated to be the owner in possession of the property bearing No. HR-139, Pul Pehladpur, Delhi, measuring 100 square yards. This is an indisputable fact that the above-said property falls under unauthorised colony. However, the Government has assured the residents of unauthorised colonies that there is no intention of acquiring the built up areas as per DO No. F.9(10)/86-LandA/LA/6482 dated 19th August, 1986. The Government of India, Ministry of Works and Housing vide their letter dated 3rd July, 1982, appointed a Committee known as "Sri Niwasan Committee to give its report on regularisation of the said unauthorised colonies. Besides this, certain directions were also given by a Division Bench of this Court in Civil Writ Petition No. 4771/1993. However, on 12th July, 2001 and 19th July, 2001, the officials of DDA and MCD visited the spot for taking forcible possession of the suit property. Consequently, the present suit for permanent injunction was filed with the prayer that the respondents be restrained from demolishing and sealing the property in question.
(2.) THE defendant/DDA enumerated the following defences in its written statement. The property in question falls in Khasra No. 232 measuring 4 bighas and 16 biswas, which was acquired vide award No. 63/82-83 dated 31st January, 1983, pursuant to notification dated 23rd January, 1965. The symbolic physical possession of the land under award was taken over on 4th March, 1983 and the land in question was placed at the disposal of DDA. The suit land vests in Central Government and the appellant/plaintiff has no right, title or interest in the suit property. The aspect of regularisation has nothing to do with the acquisition proceedings and the appellant cannot seek protection of the court on the ground that the colony in question is going to be regularised. Before the trial court a photocopy of judgment in CWP 2212/1989 titled as Kul Prakash Awana v. DDA decided by Justice (Retd.) C.K.Mahajan was produced. It transpired that the plaintiff/appellant had filed the above-said writ in the name of one Kul Prakash Awana and the said writ was dismissed on 22nd October, 1999. In the said writ the particulars of house No. HR-139, Pul Pehlad Pur, New Delhi measuring 100 square yards comprising in Khasra No. 322 were mentioned. The learned trial court also quoted the relevant portion of the said judgment, which is reproduced as under:- "The petitioner also had not filed any document of title. He is also not the recorded owner of the land in question. The main thrust of the petition is that the unauthorised colony Pul Pehlad Pur is one of the colonies listed for regularization. The government may have taken a decision to regularize but as far as this land is concerned it is validly acquired. The petitioner is an encroacher and is not entitled to equitable relief." The learned trial court found that all these facts were suppressed. In view of the above-said award/acquisition the appellant had no right, title or interest in the property in question. The trial court also relied upon a judgment of the Apex Court reported in State of Bihar v. Drinder Kumar and Others [1995(4) SCC 229].
(3.) I have heard the learned counsel for the parties. Counsel for the respondents/DDA did not pick up a conflict with the argument raised by the learned counsel for the appellant that the case of regularisation of 1071 unauthorised colonies is pending before the Government of India for regularisation. In case some colonies were regularised by the Government after some time and the appellant's house is permitted to be demolished, it would cause grave injustice to the appellant. It must be borne in mind that the appellant has got a built up accommodation. There is no inkling in the pleadings or prima facie evidence that Kul Prakash Awana and the appellant is the same person. Counsel for the respondent argued that it appears to be a case of same building. The pick and choose policy should not be adopted. The respondents must wait to see whether the government regularizes the colony in question or not. Till then, no action should be taken against the appellant.;

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