RFA No. 125/2018 Page 1 of 15

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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RFA No. 125/2018

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Reserved on: 9^th February, 2018

Pronounced on: 15^th February, 2018

S.D. RATHI

..... Appellant

Through:

Mr. Rajender Singh, Advocate.

versus

NORTH DELHI MUNICIPAL CORPORATION ..... Respondent

CORAM:

HON’BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J

C.M. Appl. No. 5035/2018 (for exemption)

1.

Exemption allowed, subject to all just exceptions.

C.M. stands disposed of.

RFA No. 125/2018 and C.M. Appl. No. 5036/2018 (for stay)

2.

This Regular First Appeal is filed by the plaintiff under

Section 96 of the Code of Civil Procedure, 1908 (CPC) impugning the

judgment of the trial court dated 31.10.2017 by which the trial court

has dismissed the suit filed by the appellant/plaintiff seeking recovery

of compensation of Rs.15,20,380/- as also allotment of an alternative

site in lieu of acquired land/property.

RFA No. 125/2018 Page 2 of 15

3.

The facts of the case are that appellant/plaintiff pleaded

that he was the owner in possession of property/plot no.3 admeasuring

107.5 sq. yards, falling in Khasra no.5/25/1 Village Nangloi Jatt,

Delhi-41 abadi known as Friends Enclave Part-II, New Delhi, Sultan

Puri Road. Appellant/plaintiff claimed to have purchased the suit

property in terms of registered sale deed dated 1.3.2006.

Appellant/plaintiff pleads that he is the doctor who ran his clinic from

the suit property. On 2.1.2012 it was pleaded that officials of

Municipal Corporation of Delhi (MCD) came and demolished and

took possession of 28 sq. meters from the suit property for the purpose

of widening of a road and construction of a flyover over the Delhi-

Rohtak railway track. It was pleaded in the plaint that possession was

illegally taken of the said 28 sq. meters without issuing any notice and

it was further pleaded that inspite of forcibly taking away the land of

the appellant/plaintiff the respondent/defendant neither paid any

compensation nor has allotted any alternative site and therefore

through the suit appellant/plaintiff claimed compensation and

allotment of an alternative site.

RFA No. 125/2018 Page 3 of 15

4.

Respondent/defendant contested the suit by filing written

statement and pleaded that appellant/plaintiff was encroacher of public

land which was a public road and such encroachment was on a Right

of Way of 100 feet road and therefore the encroachment on the main

road was removed for constructing road over bridge and road under

bridge between Sultan Puri and Nangloi Jatt. The cost of construction

of the bridge was to be shared between Indian Railways and the

respondent/defendant. It was pleaded that the property of the

appellant/plaintiff, of which 28 sq. meters was taken over by the

respondent/defendant, was a part of unauthorized colony being

Friends Enclave till the year 1977 and this colony was regularized in

terms of the circular dated 16.1.1977 of the Lieutenant Governor

subject to the existing structures being regularized in accordance with

the layout plan prepared after getting clear spacing for roads and

community facilities.

Appellant/plaintiff is pleaded to have

encroached upon a part of the main road, being 100 feet wide road,

which was to be constructed in front of the property of the

appellant/plaintiff, and as duly provided in the regularization plans. In

terms of the Resolution no.1030 of the respondent/defendant dated

RFA No. 125/2018 Page 4 of 15

11.1.1984 regularization of Friends Enclave took place where it was

clearly shown that there would be construction of 100 feet wide road