W.P.(C)/1413/2013 of MAHENDER SINGH AND ANR Vs NORTH DELHI MUNICIPAL CORPORATION

IN THE HIGH COURT OF DELHI AT NEW DELHI

+W.P.(C) 1413/2013

MAHENDER SINGH AND ANR

..... Petitioners

Through:Mr. Anil K. Aggarwal and Md.Imtiyaz, Advs.Imtiyaz, Advs.

versus

NORTH DELHI MUNICIPAL CORPORATION ..... RespondentThrough:Ms.MiniPushkarna,StandingCounsel with Ms. Anushruti, Adv.

CORAM:HON'BLE MR. JUSTICE A.K. PATHAK

O R R21.01.2016

1.By this writ petition under Article 226 of the Constitution of India,

petitioners have prayed that respondent be directed to remove the publicpark and clear all encroachment over the petitioners’ land bearing Khasrano. 30/11, situated in Village Shakurpur, Delhi and handover the vacantpossession thereof to the petitioners.In essence, petitioners are seekingpossession of the subject land from the respondent, claiming themselves tobe the owners thereof.

2.Petitioners have alleged that respondent (North Delhi MunicipalCorporation) had wrongfully encroached the said land in the year 2007. Onnoticingtheencroachment,petitionersapproachedtheRevenue

Assistant/Sub-Divisional Magistrate, North – West District for mutating thelands of the petitioners including the subject land in the name of petitioners.Vide order dated 31[st]December, 2008 Revenue Assistant directed theTehsildar to record mutation in respect of the land forming part of Khasrano. 30/11, amongst other lands, in Village Shakarpur, in the names ofpetitioners. In the year 2009, petitioners prayed for the demarcation of land,which was carried out by the Revenue Authorities. However, Tehsildar didnot handover possession of the land to the petitioners, since the same waswith the respondent.

3.Inthecounteraffidavit,respondent(NorthDelhiMunicipalCorporation) has alleged that subject land is, in fact, public parkmaintained by the respondent since long. Petitioners cannot claim title overthe land on the basis of revenue entries alone. Subject land was, being usedas public park right from 1963 onwards. Village Shakarpur was urbanizedin the year 1963. DDA prepared regularization plan of the area includingShakur Basti, Rani Bagh, Rishi Nagar, Mohindra Park, Sant Nagar andMajnis Park in the year 1979 vide Resolution No. 25.Copy of theResolution no. 25 has been annexed as Annexure R-1.It is further statedthat subsequently, layout plan of Rani Bagh and other adjacent areas was

formulated by the DDA, which included the land in question and wasearmarked for park in the said plan.Copy of the layout plan has beenannexed as Annexure R-2. It is also the case of respondent that services ofthe area were handed over to Municipal Corporation of Delhi in the year1988 and since then, respondent is maintaining the subject land as park.Document regarding handing over of the area has been annexed as AnnexureR-3. It is further alleged that claim of the petitioners on the basis of therevenue entries, appears to be false and vague, since many residentialbuildings are existing adjacent to the park in question, which are inpossession of different persons.

4.It is, thus, clear that petition involves disputed questions of fact,which cannot be resolved on the basis of affidavits alone.Evidence isrequired to be led. Claim of the respondent is that the area was urbanized inthe year 1963, inasmuch as layout plan was drawn by the DDA and the areawas handed over to the respondent in the year 1988 and since then, subjectland is being maintained by the respondent as park. Documents in supportthereof have been filed. The stand of petitioners is contrary to this stand ofrespondent. Petitioners have relied on revenue records. Both the sides haveto lead evidence and proved their stand, which is not in the domain of writ

jurisdiction.

5.Learned counsel for the petitioners has relied upon the judgments, thatis, in Harbanslal Sahnia and Another vs. Indian Oil Corporation Ltd. andOthers (2003) 2 Supreme Court Cases 107, Ram Niwas vs. FinancialCommissioner, Delhi & Ors. (2011) 122 DRJ 708 (DB) and State ofHaryana vs. Mukesh Kumar and Others (2011) 10 Supreme Court Cases 404to buttress his contention that writ petition is maintainable; Revenue recordis conclusive proof of title and further said that plea of adverse possessioncannot be entertained. I find the judgments to be in the context of differentfacts and are of no help to the petitioners, in the facts and circumstances asdetailed hereinabove. In Harbanslal’s case (supra) dealership granted by therespondents to the appellants was cancelled, which was in issue. In MukeshKumar’s case (supra), parties had already lead evidence and proved theirrespective stands during the trial in the suit.

6.Writ petition is dismissed.

JANUARY 21, 2016rb

A.K. PATHAK, J.