Dismissed

Akhtar Elahi v. Union of India and Ors.

Delhi HC10 Apr 2019W.P.(C)/2551/2017

Case brief

AI extract

What is this about?

The High Court of Delhi considered a writ petition seeking a declaration that land acquisition proceedings had lapsed due to non-utilization. The court dismissed the petition, holding that since the land forms part of an unauthorized colony awaiting regularization, the petitioner lacks locus standi and the legal premise for invocking Section 24(2) of the 2013 Act is contradicted.

What did the court decide?

Writ petition dismissed; declaration of lapse of acquisition denied; interim order vacated; applications dismissed.

Akhtar Elahi Vs Union of India and Ors. — Land Acquisition | Delhi HC (2019)

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$~24

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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W.P.(C) 2551/2017 & CM APPL. 45793/2018 AKHTAR ELAHI ..... Petitioner Through Mr. Manish Jain, Advocate.

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Versus UNION OF INDIA & ORS. ..... Respondents Through Mr. Kavindra Gill for UOI. Mr. Yeeshu Jain & Ms. Jyoti Tyagi, Advocates for Respondent/LAC/ L & B. Ms. Benashaw S. Soni, Additional Standing Counsel with Mr. Aakash Yadav for DDA.

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CORAM: JUSTICE S. MURALIDHAR JUSTICE I.S. MEHTA

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O R D E R % 10.04.2019

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The prayers in the present petition read as under:

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“In the facts and circumstances hereinabove stated, the Petitioner most humbly pray that this Hon'ble Court maybe pleased to:

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(i) issue a writ of certiorari and/or any other writ, order or direction of the similar nature declaring the entire acquisition with respect to 200 Sq. Yds. plot No. S-786/6 (TWO SIDE OPEN) one side 8 ft Gali, other's side 16 FT road, out of 22 bigha 00 biswa of land of the petitioner comprised in khasra no. 427/260 (22-00), situated in the revenue estate of village Jogabai, Tehsil Defence Colony, New Delhi having lapsed and further quashing of the impugned notification No. F.9(l)/89-

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W.P.(C) 2551/2017 Page 1 of 6

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L&B/I dated 23.06.1989 issued under Section 4, Notification No. F.9(l)/89- L&B/II & III dated 22.06.1990 issued under Section 6 & 17 of the Land Acquisition Act, 1894 and the Award No. 19/92-93 with respect to 200 Sq. Yds. plot No. S- 786/6 (TWO SIDE OPEN) one side 8 ft Gali, other's side 16 FT road, out of 22 bigha 00 biswa of land ofthe petitioner comprised in khasra no. 427/260 (22-00), situated in the revenue estate of village Jogabai, TehsilDefence Colony, New Delhi.

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AND

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(ii) issue a writ of mandamus and/or any other writ, order and direction of the similar nature issuing directions to the Respondents not to disturb or hinder the possession and enjoyment of the Petitioner over 200 Sq. Yds. plotNo. S-786/6 (TWO SIDE OPEN) one side 8 ft Gali, other's side 16 FT road, out of 22 bigha 00 biswa of land of the petitioner comprised in khasra no. 427/260 (22-00), situated in the revenue estate of village Jogabai, Tehsil Defence Colony, District South East, Delhi.

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(iii) pass any other or further order which this Hon'ble Court may deem fit and proper in the interest of justice.”

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The background facts are that land in question i.e. Khasra No. 427/260 (22-00) (200 Sq. yards) located in the revenue estate of Village village Jogabai, Tehsil Defence Colony was notified for acquisition under Section 4 of the Land Acquisition Act (LAA), 1894 on 23^rd June 1989.

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This was followed by declaration under Section 6 of LAA on 22^nd June 1990. The Land Acquisition Collector (LAC) passed the impugned Award No. 19/92-93 on 19^th June 1992.

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W.P.(C) 2551/2017 Page 2 of 6

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It is stated in the petition that the Petitioner is “the owner and in actual physical possession of 200 Sq. Yds. H. No. R-786/7 out of 4 bigha 12 biswa and 7 bigha of land of the petitioner comprised in Khasra No. 418/260 (412) and Khasra No. 419/260 (7-00) situated in the revenue estate of Village Jogabai, Delhi”.

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In para 3 of the writ petition, the Petitioner states that he is still in possession of the subject land and has not received compensation for the same. It is stated in Para 5 of the petition that the land vests with the Petitioner since 2001 and before that his predecessor. In Para 5(iii) of the writ petition, a series of transactions is referred to whereby the land has been transferred from one person to another. However, there is no document annexed along with the writ petition showing the ownership or title of the Petitioner qua the said land.

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According to the LAC, physical possession of khasra number 427/260 (22-00) was taken over and handed to the DDA on 31^st December 2013. On the aspect of compensation it is stated that the Naksha Muntazim and payment file is not available in the LAC's office. Therefore, it cannot be ascertained whether compensation has been paid or not. It is pointed out that the Petitioner is not the recorded owner of the land and has not placed any document on record to show that the land in question has been purchased from the recorded owner.

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A separate counter affidavit has been filed by the DDA stating that physical possession of the land in question was taken on 31^st December 2013. It is also stated that compensation of Rs. 10 Crores was released vide

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W.P.(C) 2551/2017 Page 3 of 6

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cheque no. 887574 dated 28^th August 1990. It is further submitted by the DDA that the Petitioner claims to have purchased the property in 2001 without placing on record any document in proof thereof. It is stated that no permission has been placed on record as per the requirement of Section 5 of the Delhi Lands (Restrictions on Transfer) Act, 1972.

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In the rejoinder filed by the Petitioner, it is reiterated that the possession of the said land remains with the Petitioner and compensation has not been paid till date. It is stated that the possession taken over by the LAC was only symbolic and physical possession has not been taken.

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Apart from the fact that the aforementioned pleadings give rise to disputed questions of fact concerning the aspects of possession and compensation, which cannot be examined n these proceedings, in the course of the hearing, it transpired that Jogabai (Okhla) is one of the unauthorized colonies in respect of which a provisional regularization certificate has been issued. On the website of the Department of Urban Development of the GNCTD, the complete list of unauthorized colonies in respect of which tentative application forms and tentative layout plans had been submitted and which are awaiting regularization has been put up. Jogabai is one of those unauthorized colonies, which figures at S.No.898. Clearly, therefore, the property in question forms part of the unauthorized colony.

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This Court has in a series of orders, consistently held that where the property in question is part of an unauthorized colony, no relief under Section 24 (2) of the 2013 Act can be granted. The legal position has been

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W.P.(C) 2551/2017 Page 4 of 6

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summarized by the Court in Mool Chand v. Union of India 2019(173) DRJ 595 [DB] where it was held in paragraphs 48, 49 and 50 as under:

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“48. The third aspect of the case is that the Petitioner admits that the land in question is part of an unauthorised colony. The very basis for seeking regularisation of an unauthorised colony is that it is located on land which belongs either to the public or to some other private parties. The Petitioners would therefore not have the locus standi to seek a declaration in terms of Section 24 (2) of the 2013 Act in such cases since the very fact that they have sought regularisation on the basis that they are in unauthorised colony would be an admission that they do not otherwise have any valid right, title or interest in the land in question.

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This Court has by order dated 19th December 2018 in WP(C) No.190/2016 ( Harbhagwan Batra v. Govt. of NCT of Delhi ) and order dated 8th January 2019 in WP(C) No.10201/2015 ( Gurmeet Singh Grewal v. Union of India ) negatived similar pleas by the Petitioners who were trying to seek similar declaration of lapsing even while admitting that they were pursuing regularisation of an unauthorised colony.

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In a decision dated 10th January 2019 in W.P. (C) 3623 of 2018 ( Akhil Sibal v. Govt. of NCT of Delhi ) this Court observed in this context as under:

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“18. The Court at this stage may also observe that many of the unauthorized colonies are awaiting regularization orders. A large portion of these colonies are by way of encroachment on public land, some of it may be on private land, but in any event, the constructions themselves are unauthorized. The major premise on which such regularization is sought is that these constructions have been erected on public or private land which does not belong to the persons who are under occupation of those structures. That very basis gets contradicted as some of them try

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W.P.(C) 2551/2017 Page 5 of 6

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to seek a declaration about lapsing of the land acquisition proceedings by invoking Section 24 (2) of the 2013 Act. This is a contradiction in terms and is legally untenable.”

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The above decision has been followed and the legal position has been reiterated by this Court in an order dated 25^th January, 2019 in W.P.(C) No.3438/2015 ( Krishna Devi v. Union of India ). As clarified in those orders, the dismissal of the present petition will not come in the way of the Petitioner pursuing the claim for regularisation of the unauthorised colony in question.

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Consequently, the reliefs prayed for in the petition cannot be granted. The writ petition is dismissed. The interim order dated 21^st March 2017 as confirmed on 13^th March, 2018 stands vacated. The applications are dismissed.

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S. MURALIDHAR, J.

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I.S. MEHTA, J.

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APRIL 10, 2019 mw

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W.P.(C) 2551/2017 Page 6 of 6

Akhtar Elahi v. Union of India and Ors.

Case brief

What is this about?

What did the court decide?

Akhtar Elahi v. Union of India and Ors.

Case brief

What is this about?

What did the court decide?

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