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2015 Supreme(Del) 1020
IN THE HIGH COURT OF DELHI AT NEW DELHI
RAJIV SHAKDHER, J.
VINOD KUMAR - Petitioner
Versus
GOVERNMENT OF NCT OF DELHI & ORS - Respondents
W.P.(C) 6176/2015
Decided On : 07.07.2015
Advocate Appeared:
For the Petitioner: Mr Anand Yadav & Ms Anita Tomar, Advs.
For the Respondents: Mr Peeyoosh Kalra, ASC with Ms Mahua Kalra, Adv.
The court has the authority to direct demarcation and removal of encroachments on public land.
Headnote:
Encroachment - Public Passage - The court directed the respondents to carry out demarcation of the subject area within six weeks and determine if there is any encroachment. If encroachment is found, necessary steps should be taken for its removal within three months.
Fact of the Case:
The petitioner filed complaints regarding alleged encroachments on a public passage. The SDM forwarded the complaint to the BDO, who issued a notice to the encroachers. The petitioner approached the court under Article 226 of the Constitution due to dissatisfaction with the respondents' approach.
Finding of the Court:
The court found that the demarcation process was underway and directed the respondents to carry out demarcation within six weeks. If encroachment is found, necessary steps should be taken for its removal within three months.
Issues: Alleged encroachments on a public passage, dissatisfaction with respondents' approach
Ratio Decidendi: The court's decision was based on the ongoing demarcation process and the petitioner's willingness to pay for the demarcation costs.
Final Decision: The writ petition and the application were disposed of, and the respondents were directed to carry out demarcation and take necessary steps for encroachment removal within three months. Compliance was listed for a later date.
CM No. 11230/2015 (Exemption)
1. Allowed subject to just exceptions.
WP(C) 6176/2015 & CM No. 11231/2015 (interim relief)
2. The basic grievance of the petitioner appears to be, that the respondents herein have not removed the alleged encroachments on the public passage/ raasta which forms part of khasra no. 593 and is positioned in the front portion of khasra no. 228 situate in village Jaunti, Delhi.
3. The record shows that the petitioner has filed complaints, in this behalf, inter alia, both with the concerned SHO as well as the SDM. As a matter of fact, the said complaints are appended at pages 30 and 33 of the paper book.
3.1 Apparently, the concerned SDM, vide communication dated 18.12.2014 forwarded the petitioner’s complaint to the BDO (North West), Kanjhawala, Delhi.
3.2 Pursuant to the said communication issued by the SDM, the BDO, apparently, issued a notice dated 05.01.2015 to the purported encroachers. By this notice, the BDO directed the noticees to vacate the aforementioned public passage/ raasta, failing which action for removal of encroachments would be taken, by using force, albeit at their cost. For this purpose, the purported encroachers were given ten (10) days time.
3.3 The notice dated 05.01.2015 is demonstrative of the fact that apart from various encroachers, whose names were mentioned therein, there is a reference to one, Mr Zile Singh son of Mr Sudhan.
3.4 It appears that Mr Zile Singh son of Mr Sudhan has filed a counter-complaint.
3.5 It is perhaps based on the said counter-complaint that vide a communication dated 30.04.2015, the BDO, wrote to the SDM, indicating therein that since he had received a complaint from Mr Zile Singh son of Mr Sudhan (to whom I have made a reference hereinabove), the SDM should issue necessary instructions to field staff to demarcate the subject land, so that necessary steps could be taken thereafter, for removal of encroachments.
3.6 Since the petitioner had approached the BDO, in line, with the communication dated 30.04.2015, written by him to the SDM, a communication dated 22.05.2015 was dispatched to the petitioner wherein, a position has been taken, that only upon demarcation being conducted information as to the persons who were in possession of khasra no. 593, located in front portion of khasra no. 227 (i.e. the public passage/ raasta), could be given to him.
3.7 To be noted, this communication was sent pursuant to the application filed by the petitioner under the Right to Information Act, 2005 seeking the names of the purported encroachers.
4. Being dissatisfied with the approach of the respondents, the petitioner, has approached this court by way of a petition under Article 226 of the Constitution. Mr Peeyoosh Kalra has appeared on behalf of the respondents.
5. I have heard the learned counsels for the parties for some time. I propose to dispose of the petition at the notice stage itself. I am also of the view that no counter affidavit is required, at this stage, in view of the directions that I propose to pass.
6. Before I do that, what has emerged from record as presently placed before me is as follows: The correspondence relied upon by the petitioner, which is backed by his affidavit, is indicative of the fact that the process of demarcation is underway, and that, determination as to whether or not there is encroachment, and if so, who are those encroachers, on the public passage/ raasta, can be made only thereafter.
6.1 Since, Mr Yadav, who appears for the petitioner, has indicated that his client is willing to pay the cost of the demarcation, I see no difficulty in issuing the following directions to the respondents.
(i) The respondents will carry out the demarcation of the subject area, within six weeks from today.
(ii) The demarcation will be carried out preferably by using TMC methodology.
(iii) The cost of demarcation will be deposited by the petitioner within ten (10) days from today, albeit upon the respondents indicating the petitioner as to the costs involved
