Hira Lal And Ors. vs Municipal Corporation Of Delhi
2001 Latest Caselaw 1821 Del

JUDGMENT

Manmohan Sarin, J.

1. Rule.

With the consent of the parties, writ petition is taken up for disposal.

2. Petitioners have filed the present writ petition, seeking a director to the respondent/MCD to regularise the shops of the petitioners and to pass further orders and directions, as may be required.

The case of the petitioners is that they are permanent shopkeepers in Guru Hari Kishan Market, Jangpura Extension, New Delhi, opposite Eros Cinema, New Delhi, on a piece of land, which belongs to MCD. Petitioners claim that initially the allotment was made of tehbazari sites and petitioners had duly paid the tehbazari charges from April, 1997 to March, 1981. Petitioners claim that vide a Resolution No. 17 dated 16.1.1985, passed by the Adhoc (Survey and Rehabilitation of Patri and Khomchawalas) Committee, recommendation was made to the Corporation through its standing Committee to permit conversation of open tehbazari to covered tehbazari. Petitioners claim that pursuant to the recommendations of the Committee petitioners were permitted by MCD to construct the shops over their respective sites of open tehbazari with their own funds.

3. Petitioners claim to have constructed the shops during the year 1986 to 1997. Some of the petitioners claim that they had regular water, electricity and telephone connections. Petitioners claim that for ulterior motives, certain employees along with the local councillor had come to the site on 13.7.1991 and threatened demolition of the shops unless their illegal and unreasonable demands were met.

4. Mr. Dahiya submits that respondent/MCD has arbitrarily and illegally carried out a demolition while the writ petition was pending. A clarification had been sought by this Bench with regard to whether Resolution No. 17 of Adhoc (Survey and Rehabilitation of Patri and Khomchawalas) Committee dated 16.1.1985 had been approved or not by the Corporation. Further, whether the payments made by the petitioners were for a open tehbazari or covered one. An additional affidavit had also been filed by the petitioners, wherein it was claimed that the Hon'ble Supreme Court had clarified the position in I.A. No. 356/2001 moved in Civil Writ Petition No. 1699/87, wherein it was clarified that shop owners, abutting the pavements covered tehbazari were not covered by the judgment of the Supreme Court in Gainda Ram's case.

5. Mr. Shiv Kumar, learned counsel for the respondent/MCD, has produced on record a Resolution of the Standing Committee of the Corporation, which had dealt with the recommendations made by the Adhoc (Survey and Rehabilitation of Patri and Khomchawalas) Committee. As per the Resolution, recommendation made, was returned and referred for reconsideration to the Adhoc (Survey and Rehabilitation of Patri and Khomchawalas) Committee. In other words, recommendations had not been approved.

6. Mr. Shiv Kumar, therefore, submits that, in these circumstances, the only right, which the petitioners possessed were to have an open to sky tehbazari. However, they had breached the terms of the said tehbazari by raising unauthorisedly these constructions of shops. Respondent/Corporation was thus fully entitled to demolish the same, which it did. Learned counsel for the petitioner disputes the authenticity of the Resolution.

7. Learned counsel for the respondent has also pointed out that the petition appears to have been filed, not by the original allottees or original tehbazari holders, but rather by subsequent unauthorised shopkeepers, who have come either by sale or transfer of the site. Respondent/MCD had not recognised these unauthorised transferees. It is not necessary to dwell on this aspect any further. Once it is shown that the tehbazari granted was only open to sky. It was not permissible for the said petitioners or their predecessor-in-title to have raised puce shops. Mr. Shiv Kumar has shown in Court the photographs, showing the existence of full-fledged shops, which have since been demolished. The clarification by the Supreme Court in this case, as relied on by Mr. Dahiya, is only to the effect that the cases of covered tehbazari are not covered by Gainda Mal's judgment. This would not advance the petitioner's case in these instant facts.

The writ petition has no merit and is dismissed.