Promila Devi vs Dda And Anr.
2002 Latest Caselaw 2111 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. It is a classic case where the petitioner and respondent No.2 are fighting over a tenement over which both did not have any right. It is the inaction and inability of respondent No.1 to take remedial measures against the unauthorised occupation of the tenement which has given rise to the present dispute.

2. The petitioner claims that she was living in a tenement built in village Tigari, J.J. Colony and in 1978 floods the tenement was destroyed. A list of persons whose tenements were so destroyed was prepared in January, 1980 containing the names of 501 such victims and the name of the petitioner figured in the said list at serial No. 371 against Jhuggi No. C-129 destroyed in the floods.

3. It is stated that a decision was taken to rehabilitate the uprooted persons including the petitioners in Trilokpuri. The petitioner was already in occupation of tenement No. 35/10 and waited for regularisation. The petitioner also deposited the amounts as required within time. The petitioner made the request vide letter dated 13.4.1981 and respondent No.1 vide letter dated 24.6.1982 asked for petitioner to furnish her ration card and income certificate which was replied to by the petitioner on 20.7.82. It is stated that the petitioner had complied with all the conditions required by respondent No.1.

4. In July, 1982 the petitioner claims that she went out of Delhi after locking the tenement and in her absence respondent No.2 broke open her tenement and occupied the same. It is stated that respondent No.2 did not belong to the list of 501 victims uprooted in the flood. It is further stated that the petitioner made various representations against the unauthorised occupation and even eviction proceedings were initiated against respondent No.2 which resulted in an order dated 14.8.87 being passed by the Estate Officer. The Estate Officer came to the conclusion that respondent No.2 was in unauthorised occupation and was liable to be evicted under the Public Premises (Eviction of Unauthorised Occupants) Act (hereinafter referred to as the Act).

5. The petitioner is aggrieved by the fact that suddenly a decision was taken to regularise the tenement in favor of respondent No.2 and the letter dated 22.4.88 was issued to the petitioner stating so. The petitioner thus filed the present writ petition seeking quashing of the decision of respondent No.1 allotting the tenement in favor of respondent No.2 and for giving the possession of the same to the petitioner.

6. Respondent No.1 DDA in its counter affidavit has stated that though some Jhuggies were destroyed in the floods in river Yamuna in 1978 no allotment had been made to any person. However, the tenements constructed in Trilokpuri for economically weaker section of the society were illegally and unauthorisedly occupied by some persons claiming themselves to be the flood victims and they failed to vacate the quarters. A policy decision was taken vide resolution No. 97 dated 11.8.80 to regularise the occupation of the houses by the persons occupying the same subject to payment of necessary dues. The deposit made by the petitioner is admitted. though it is stated that the petitioner did not furnish the documents and thus the allotment could not be regularised. The incident of respondent No.2 breaking open the lock and occupying the tenement is denied for want of knowledge by respondent No.1. It is admitted that the letter dated 24.6.87 was issued asking the petitioner to comply with certain conditions.

7. In so far as the regularisation of the occupation of respondent No.2 is concerned, respondent No.1 has stated that in January, 1986 another general survey was conducted and in terms of resolution No. 158 dated 23.9.1983/19.11.83 it was decided to regularise the occupation of such unauthorised occupants who had been residing before 30.9.1983. In this Survey respondent No.2 was found in occupation of the tenement and therefore he was found eligible for regularisation.

8. Respondent No.2 in its counter affidavit, however, claims that the deposit made by the petitioner was for tenement No. 35/9 and not for 35/10. It is further stated that the tenement was regularised after due verification and that the name of respondent No.2 was listed in the list of flood affected persons in the survey but due to some manipulations the name was omitted in the final list.

9. Learned counsel for respondent No.1 also produced the copies of the records relating to the tenement which shows that on 24.6.82 a letter was issued to the petitioner for regularisation/allotment of the tenement No.10 Block 35, Trilokpuri subject to payment of amount and production of documents. The resolution No. 158 has also been produced in terms whereof the unauthorised occupation was regularised up to 30.9.83. Further resolution No. 97 of 11.8.80. has been produced relating to the allotment of tenement in re-settlement colonies to flood victims and others. It is noticed in this resolution that these persons had occupied and even after they have been removed they reoccupied the same.

10. I have considered the submissions advanced by learned counsel for the parties and perused the documents. The documents on record do show that initially the flood victims occupied the tenements without any allotment. The DDA expressed its helplessness in removing them. A survey was conducted by the MCD making out a list of flood affected victims.

11. Name of the respondent No. does not appear in the list in which the name of the petitioner appears. The grievance of respondent No.2 is that the his name was inadvertently not included. However, respondent No.2 has been unable to show any representation against the same.

12. The letter dated 24.6.82 shows that a letter was sent to the petitioner for regularisation/allotment of the unauthorised occupation of tenements. Thus though the petitioner was in unauthorised occupation a decision was taken to regularise the same in respect of the flood victims. This was however meant for bonafide flood victims. In so far as the rights of respondent No.2 are concerned notices were issued to respondent No.2 for unauthorised occupation of the quarter and proceedings were initiated which resulted in an order of the Estate Officer where it was found that the premises in question were in unauthorised occupation by respondent No.2

13. The only reason given by the respondent No.1 for regularising the occupation of respondent No.2 is stated to be the fact that he was in occupation of the same when the subsequent survey was carried out and a decision was taken to regularise the unauthorised occupation which had occurred before 30.9.83.

In my considered view there was no occasion for regularising of allotment of respondent No.2. The name of respondent No. 2 never appeared in the list prepared by the Municipal Corporation of Delhi and persons displaced in the floods. The mere fact that the person is in occupation unauthorisedly cannot be a ground to regularise the same. The least said the better about the decision making process of respondent No.1 where unauthorised occupation are regularised without any criteria. Be that as it may what was sought to be regularised was unauthorised occupation arising from the persons being displaced on account of the floods and not for every nature of unauthorised occupation. The mere averment of respondent No.2 that the list was not proper would not suffice as at no stage respondent No.2 filed objections to the said list.

14. I am thus of the considered view that respondent No.1 could not have taken decision to regularise the occupation of respondent No.2 and the same is hereby quashed.

15. It may be noticed that learned counsel for respondent No.2 had sought to contend that respondent No.2 has now been in occupation for a very long period of time and thus should not be disturbed. This is no answer to the illegal and unauthorised occupation of respondent No.2. Respondent No.2 cannot take advantage of the pendency of the present case for a considerable period of time. In view of the aforesaid it is directed that respondent No.1 shall forthwith take steps to remove respondent No.2 from occupation of the said quarter. It may be noticed that in terms of the interim orders passed on 12.3.1989 the possession of respondent No.2 was protected though it was directed that no lease deed would be executed in favor of respondent No.2. Thus respondent No.2 has enjoyed the benefit of interim orders passed by this court. I consider it appropriate to direct respondent No.2 to hand over vacant and peaceful possession of the tenement to respondent No.1 within a period of three months from today.

16. In so far as nature of relief claimed by the petitioner is concerned, the petitioner is undoubtedly one of the victims of the floods and the letters were issued to the petitioner in respect of this very tenement. However, it has to be examined whether the petitioner had filed all the necessary documents for the said allotment. I thus consider it appropriate to direct respondent No.1 to examine the documents of the petitioner and in case there is any shortcoming to intimate the same to the petitioner within a month. On the petitioner completing the necessary formalities and on respondent No.2 vacating the said tenement, the possession of the tenement should be handed over to the petitioner.

17. Writ petition is allowed in the aforesaid terms leaving the parties to bear their own costs.