Mahinder Singh Oberio And Ors., ... vs Union Of India (Uoi) And Ors.
2003 Latest Caselaw 405 Del

JUDGMENT

Manmohan Sarin, J.

 1. By this common judgment, I would be deciding the above mentioned writ petitions as  common pleas and similar facts arise for consideration. Besides all the petitioners are seeking protection against eviction and directions for alternate allotment.    C.W.Nos.3670/2001 and 4722/96 have been taken as the lead cases.   However, for facility of reference, the particulars of the petitioners and locations of their respective premises are given below.   
 

 CW 3670/1996  
 

2. Mahinder Singh Oberoi petitioner No.7 Along with 25 other petitioners claimed to be in occupation of different shops in the market known as Wellesly Mess Market, New Delhi. The petitioners assail the impugned order dated 17.9.96 passed by the Additional Distt. Judge, by which he dismissed batch of 31 appeals, preferred by the petitioners and others against the order of eviction passed by the Estate Officer under the Public Premises (Eviction of Unauthorised Occupants) Act (hereinafter referred to as "the Act"). Petitioners also claimed that the respondents be directed to act upon the alleged compromise arrived at between the parties during the eviction proceedings in the years 1973-75. One Mr.Raghu Singh Sandhu sought impleadment in this writ petition which was not opposed by any of the parties and vide order dated 13.8.2002, he was imp leaded as petitioner to the writ petition. The relevant facts and submissions made with regard to this petition shall be adverted to later on as this has been taken as the lead case.

CW 4722/96

3. This is a petition instituted by Rajesh Kumar Gupta and Manmohan Singh Anand who through their attorneys also claim to be in possession of the shops in the Wellesly Mess Market, Delhi. The petitioners also assail the impugned order dated 17.9.96 passed by the Additional Distt. Judge which is assailed in writ petition No.3670/2001 on similar grounds.

CW 6745/02

4. Petitioners Uma Shankar and Narender Kumar, claim to be in possession of Shop Nos.10A and 10 in the Wellesly Mess Market and assail the order dated 17.9.96, passed by the Additional District Judge as in C.W.No.3670/96. The petitioners seek writ of mandamus for allotment of an alternate commercial accommodation and also for directing the respondents to act on the compromise claimed to have been entered into between the parties, during the eviction proceedings in the year 1973-75. Petitioners also seek a direction that respondent shall not give effect to the eviction order against the petitioners till they are given alternate accommodation and are resettled.

CW 5523/2002

5. Petitioners - Balbir Singh and Shakeel Ahmed claim to be in occupation of garages No.11 and 9 respectively at Naval Officers Mess Annexe, Kota House, since 1963. Petitioners by way of writ petition seek quashing of the notice dated 19th August, 2002 issued by the Administrative Officer, Kota House, New Delhi. Restraint is sought on the respondent not to evict the petitioners in pursuance to the above notice. Vide the said notice, the allotment of the garage was cancelled and it was notified that action for eviction and taking possession would be taken. Petitioner No.1 claims that the shop in question had been allotted to his father since 1955, when the mess was known as Queen Victoria Mess and was situated at Rajindra Prasad Road. It is claimed that after the shifting of Victoria Mess to Kota House, the petitioners were shifted and their predecessor-in-interest were allotted garages No.11 and 9 to run the tailor shop and scooter repair shop. Similarly it is claimed that petitioner No.2 was allotted the garage and he has been running since 1987 a Scooter-Cycle workshop. The shop had earlier been allotted to one Swarup Singh with whom the petitioner was working and later on it was allotted to the petitioner. Petitioners also claimed that since they had been working there for decades, they cannot be evicted by one month's notice.

During the course of proceedings, petitioner's counsel on 29th October, 2002 submitted that the petitioners are confining their relief and claim in the writ petition to alternate allotment or preference being given for alternate allotment.

CWP 4685/2002

6. Petitioners Panna Lal and 16 others claim to be allottees and in occupation of servant quarters/shops at Jodhpur Hostel, Pandara Road, New Delhi. Petitioners claim to be petty shopkeepers carrying out small businesses like Tailor Shop, Barber shop, washerman, STD Booth, Tea Stall, Grocery shop etc at Jodhpur Hostel, Pandara Road. Petitioners are aggrieved by the notice dated 11th July, 2002, notifying the said quarters and shops as being under unauthorized occupation. Petitioners No.1 and others by similar notices have been called upon to vacate the servant quarters and shops by 20th July, 2002, failing which action under Public Premises (Eviction of Unauthorized Occupants) Act 1971 (hereinafter referred to as "the Act") will be initiated for securing vacant possession of the quarters and shops in their respective occupation. Petitioners seek by this writ petition a direction for allocation of alternate shop/residential accommodation in place of the shops quarters occupied by the petitioners in Jodhpur Hostel, Pandara Road, New Delhi. It is claimed that the action on these notices be kept in abeyance till petitioners are provided alternate accommodation as was done in the case of occupants/shopkeepers of Central Vista Mess and Maulana Azad Road Hostel,

CW 1855/2002

7. Petitioner Duli Chand claims to be making his both ends meet by running a Stall, at Q-Block, Rajaji Marg, DHQ, New Delhi. Petitioner claims to have been given a stall for selling fruits , cigarette and candies near the South Block, CPWD Enquiry. In 1978, petitioner's stall was shifted to Central Transit House Building, South Block, New Delhi. In April, 1993, Central Transit House Building was declared old and the petitioner was given other stall in Q Block, Rajaji Marg, DHQ PO, New Delhi under the Ministry of defense. It is claimed that there are eight stalls and other establishments running there. Petitioner assails the order dated 1st March, 2002 passed under sub-Section (1) of Section 5 of the Public Premises (Eviction of Unauthorized Occupants) Act, directing the petitioner to vacate the stall. Petitioner seeks that the order dated 1st March, 2002 be kept in abeyance till the petitioner is provided alternate stall and in case the respondents are unable to provide alternate stall, then they be directed to liaison with the MCD/DDA for allotment of alternate stall.

CW 5524/2002

8. Petitioners R.V. Kaushik and others assail the notice dated 9th August, 2002 by which the allotment of residential staff quarters at Kotak House, Shahjahan Road, New Delhi, has been cancelled. It is claimed that the petitioners were notified that the staff quarters have been declared unsafe and are required to be demolished and re-built as accommodation for Naval Sailors. Petitioners were called upon to vacate the staff quarters on or before 2nd September, 2002, failing which action will be taken for eviction and taking over possession of the land. Petitioners claim that staff quarters were provided to petitioners' forefathers for services like washerman, gardener and sweeper etc. Petitioners claim to be in occupation for the last over 50 years. It is claimed that 55 families and 275 individuals have been residing there and they have no place to stay apart from the present quarters. Petitioners during the course of the writ petition confined their case for alternate allotment or preference being given therefore.

9. Mr.Mir Akhtar Hussain on behalf of the petitioners in CWP No.3670/1996 and CWP 4722/1996 submitted that the predecessors-in-title of the petitioners were granted licenses 4 to 5 decades back in respect of the shops in servant quarters at Wellesly Mess Road. Petitioners and their predecessor-in-title have been carrying on small trades, such as, that of shoe repair, tailor, milk vendors, general provision store and canteen/Dhaba, where eats are served etc. Mr.Akhtar Hussain submits that licenses of the predecessor-in-title of the petitioners had expired in the year 1973. Thereupon proceedings for eviction were initiated under the Act. It is the case of the petitioners that pursuant to a compromise reached with the authorities, the proceedings were dropped. It is asserted that it was agreed with the Authorities that the occupants would not be dis-possessed till they are given alterate allotment by the DDA or other agencies. Further, that the occupants/shopkeepers, once they are allotted alternate accommodation (commercial) they will hand over peaceful possession to the Government. The Ministry of defense was to prepare a list of allottees/shopkeepers occupying the shops by forwarding the same to different departments of the Government including the DDA for providing alternate accommodation.

10. Respondents in the counter affidavit have denied the above averments as incorrect. It is stated that petitioners have not produced any evidence or record in support of the above claim. Be it may, the proceedings were initiated against the petitioners in the year 1992 under the Act, which culminated in the passing of the eviction order dated 16.5.1994. This order was also passed after a round of remand proceedings. Appeal against the eviction order dated 16.5.1994 was dismissed by the Addl.District Judge vide order dated 17.9.1996. The order dated 17.9.1996 records the legal proceedings and stages by which the matter went through before passing of the eviction order. Petitioners filed the pressent writ petitions challenging the order dated 17.9.1996.

11. Rule in the case was issued on 7.1.2001. Vide a statement made on 7.1.2001, learned counsel for the petitioners confined their prayer in the writ petition to being granted the relief of alternate allotment. In other words, the challenge to the eviction order and dismissal of the appeal by the Addl. District Judge in the writ petition was given up. It was also prayed that eviction order be not enforced till the decision is taken on the petitioners' request for alternate allotment. Notices were also directed to be issued to Slum and JJ Wing of the MCD through counsel. DDA and MCD were already before the Court in the petitions.

12. Mr.Mir Akhtar Hussain, counsel for the petitioners, submits that respondents in the case of Maulana Azad Road Mess, Central Vista Mess, Wellesly Mess servant Quarters and Sangli Mess have provided alternate accommodation to the allottees/occupants under the various schemes either through DDA or through the JJ slum wing of MCD. Counsel urged that the Government of India had been following a policy of providing alternate accommodation to those who were occupying and running shops in the defense messes and were being uprooted consequent to the sites being required for public purposes. The correspondence exchanged between the Ministry of defense, Vice-Chairman Delhi Development Authority, has been placed on record. The instances cited are the grant of alternate accommodation to the occupants of Maulana Azad Road Officers hostel mess, in Kasturba Nagar (Sewa Nagar). It is claimed that decision was taken to provide alternate accommodation to the residents of defense hostel Kalkaji and Ranjit Nagar. Steps were also taken to provide alternate accommodation to occupants of servant quarters of Kota House and Maulana Azad Road mess. He submitted that the letter at page 257 of the paper book shows that the Government accepted moral responsibility to provide alternate accommodation to the families, which have been staying for long. Reliance was also placed on the statement made by Minister of State for Urban Development in response to question raised in Rajya Sabha, wherein it was stated that under the slum policy of DDA, shopkeepers who were dislocated will be considered for alternate accommodation by the Slums department. In short, the submission is that functionaries of the Government at the highest level were seized of the question of alternate accommodation being given. It was always understood and taken for granted that respondent would provide alternate accommodation.

13. Mr.Mir Akhtar Hussain urged that keeping in view the policy of the Government, whereby all other evictees from different defense messes have been given alternate accommodation, the petitioners should also be provided alternate accommodation. Mr.Hussain also relied on letter dated 30.5.1989, written by then then Lt. Governor Mr.Romesh Bhandari to Mr.K.C.Pant, the then Union defense Minister of India, wherein the Lt.Governor had apart from acknowledging the moral responsibility to provide alternate accommodation to the families had stated that DDA would be prepared to provide alternate residential/commercial spaces in the new areas being developed by it on no profit no loss basis, at pre-determined rates to the concerned project authorities, who may absorb this as part of the project cost.

14. Learned counsel for respondents 1 and 2 submitted that the said letters were in response to representations made and were not intended to and did not legally bind either the DDA, MCD or Union of India. Counsel submits that the entire matter was reviewed in a meeting on 12.5.1989, when a decision was taken that it was not feasible to allot to the petitioners alternate sites.

15. In view of the foregoing, respondents vide order dated 27.5.2002 were directed to consider the entire matter in the light of the commitments which are sought to be relied on by counsel for the petitioners emanating from the correspondence exchanged.

16. Mr.Jayant Bhushan on behalf of Union of India submits that there is no policy in existence based on which persons such as the petitioners, who are occupying commercial sites can be allotted alternate sites at pre-determined rates. He submits that the past allotments should not be made the basis and can not be taken as precedent for similar relief when there is no entitlement in law in the absence of any policy. In response to the directions given by this Court on 27th May, 2002, to consider the matter in the light of the commitments sought to be relied on by the petitioners where in the past alternate accommodations have been provided, the union of India filed an affidavit. It is averred in the said affidavit of Chief Administrative Officer, Ministry of defense, that pursuant to the letter dated 30.5.1989, by the then Lt.Governor Mr.Romesh Bhandari, directions were issued to DDA officials for undertaking survey of the affected hostels with a view to offer alternate accommodation as was done in the case of residents of Central Vista Mess. In a meeting held on 10.10.1989, the Commissioner Slum and J.J.Wing had pointed out that the list of aspirants with the DDA for allotment of accommodation was long and people have been waiting for over 10 years. Any preferential allotment being made for the residents and occupants of defense messes at the instance of the Ministry of defense, would be detrimental to the interests of already wait-listed persons. It was also brought out that over 55% of the persons who had been given alternate accommodation at the time of eviction from Central Vista Mess had sold the accommodation at high premium and mostly shifted back to the other hostels/sites. The Slum and J.J.Wing, accordingly, expressed its inability to offer accommodation to persons residing in service officers hostels. However, Slum and J.J. Wing stated that if any land was made available by the Ministry of defense for construction of house blocks, assistance in development could be offered by the Slum and J.J.Wing. Further, that if Ministry of defense could provide the funds for cash purchase of houses/shops then the DDA would consider the matter.

17. The position of the Ministry of defense is that it has neither any land available with it which could be used for construction of houses/shops for residents of defense hostels nor it was in a position to invest funds for purchasing the houses/shops from DDA on cash down basis.

18. The allotment for alternate house/shops for evicted persons in the past were made only on humanitarian grounds and consideration as Ministry of defense was under no obligation to provide alternate accommodation.

19. Pursuant to the direction given by this Court on 27.5.2002, the matter, it is stated, was again considered by the defense Ministry. A decision has been taken that it is not possible to provide alternate accommodation since Ministry of defense has neither wherewithal nor is under any legal obligation to rehabilitate the residents/shopkeepers of Wellesley Mess hostel. It is stated that the decision has the approval of the Minister of defense.

20. From the foregoing,the position, which emerges, is that though there have been instances in the past, where alternate allotments were made through the Slum JJ Wing upon funds being provided by Ministry of External Affairs and certain other cases of alternate allotment, the Union of India submits that it has no policy for providing such alternate accommodation. The matter was directed to the reviewed in the light of correspondence and the precedents cited. The defense Ministry after taking note of the cases where alternate accommodation has been provided as also the reports with regard to sale by more than 55% of the allottees of the alternate accommodation re-occupying the accommodation in other hostels and sites & in view of the non availability of financial resources and wherewithal, has taken a decision that it is not possible to provide alternate accommodation to these occupants. The decision taken by the respondents cannot be said to be arbitrary, unfair, discriminatory or an abuse of power. The decision taken can be justified as being in consonance with public interest. It would not make any material of difference even if in the past occupants and residents of other messes and hostels, had been provided alternate accommodation on humanitarian or compassionate grounds. Any benefit flowing from benevolence and compassion in administration cannot be transformed into a legally enforcible right. The net position is that there is no policy in existence nor is ther any legal or statutory right of which enforcement can be sought through these writ petitions.

21. Coming to the petitioners plea of legitimate expectation of alternate allotment based on past practice and precedents, reference may usefully be made to the decision of the Supreme Court in Union of India vs. Hindustan Development Corporation wherein the scope on application and limitation of the doctrine of legitimate expectation are given:

"Legitimate expectation gives the applicant sufficient locus standi for judicial review. The doctrine of legitimate expectation is to be confined mostly to right of a fair hearing before a decision which results in negativing a promise or withdrawing an undertaking is taken. The doctrine does not give scope to claim relief straightaway from the administrative authorities as no crystallized right as such is involved. The protection of such legitimate expectation does not require the fulfilllment of the expectation where an overriding public interest requires otherwise. In other words where a person's legitimate expectation is not fulfillled by taking a particular decision then decision-maker should justify the denial of such expectation by showing some overriding public interest. Therefore, even if substantive protection of such expectation is contemplated that does not grant an absolute right to a particular person. It simply ensures the circumstances in which that expectation may be denied or restricted. Legitimate expectation being less than a right operates in the field of public and not private law and to some extent such legitimate expectation ought to be protected though not guaranteed. A case of legitimate expectation would arise when a body by representation or by past practice aroused expectation which it would be within its powers to fulfill. The protection is limited to that extent and a judicial review canbe within those limits. A person who bases his claim on the doctrine of legitimate expectation, in the first instance, must satisfy that there is a foundation and thus he has locus standi to make such a claim. There are stronger reasons as to why the legitimate expectation should not be substantively protected than the reasons as to why it should be protected. Such a leal obligation exists whenever the case supporting the same in terms of legal principles of different sorts, is stronger than the case against it. Therefore the limitation is extremely confined and if the according of natural justice does not condition the exercise of power, the concept of legitimate expectation can have no role to play and the court must not usurp the discretion of the public authority which is empowered to take the decisions under law and the court is expected to apply an objective standard which leaves to the deciding authority the full range of choice which the legislature is presumed to have intended. Even in a case where the decision is left entirely to the discretion of the deciding authority without any such legal bounds and if the decision is taken fairly and objectively, the court will not interfere on the ground of procedural fairness to a person whose interest based on legitimate expectation might be affected. If it is a question of policy, even by way of change of old policy, the courts cannot interfere with a decision. If a denial of legitimate expectation in a given case amounts to denial of right guaranteed or is arbitrary, discriminatory, unfair or biased, gross abuse of power or violation of principles of natural justice, the same can be questioned on the well-known grounds attracting Article 14 but a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles."

Applying the above principles to the present facts, it would be seen that legitimate expectation is less than a right. It is not a crystallized right. It deserves protection though cannot be guaranteed. Court is not to usurp discretion of public authority. Only an objective standard is to be applied, leaving it to the deciding authority a full range of choice. If it is a decision of policy, even by way of change of old policy, the courts cannot interfere with the decision. In the present case, the respondents have taken a decision considering the available resources and experience of past alternate allotments. It is a decision taken fairly and objectively and keeping public interest in mind.

22. I may also notice that the Division Bench of this Court in Okhla Factory owners' Association (regd.) and another vs. The Govt. of National Capital Territory of Delhi and others CWP Nos.4441/1994 and 2112/2002 decided on November 29, 2002, has quashed the policy, which required alternate sites to be provided to slum dwellers and other unauthorized occupants, occupying public land, before they can be removed from such public land. The Court held that land was acquired from farmers, who do not even have a vested right for alternate allotment. However, squatters who encroach upon public land, under the policy got alternate plot with substantial funding being done by land owning agencies. The Division Bench relied on the observations of the Supreme Court in Almitra H Patel and another vs. Union of India and others , wherein it was observed that re-awarding encroachers of public land with free alternative site, is like giving a reward to a pick pocket. However, in the present writ petitions at hand, it may be noted that though petitioners claim that their predecessors-in-title were the original allottees of the shops or sites on license basis, but in some of the cases, the present occupants are transferees/purchasers from original allottees. While the status of the petitioners is not that of rank encroachers on public land, nevertheless with the licenses having expired by efflux of time and not having been renewed, the petitioners would be unauthorized occupants under the Act.

23. In view of the foregoing discussion, it is held that there is no statutory or legally enforceable right available to the petitioners to seek alternate allotment. It would not be of any material consequence that in the past either on account of humanitarian or compassionate considerations, alternate sites were allotted. As the only plea surviving in the writ petition is one seeking a direction for alternate allotment, the same is liable to be rejected and is so rejected.

24. In view of the foregoing discussion, the writ petition No.3670/1996 is dismissed.

(ii) CWP No.4722/1996 (Rajesh Kumar Gupta & anr. vs. UOI & ors)

Petitioners had given up the challenge to the eviction order dated 17.9.1996, as also the prayer for a direction to act upon the compromise claimed to have been entered into with the respondents. Petitioners have confined their prayer to alternate accommodation. In view of it being held that there is no statutory or enforceable right for grant of alternate accommodation, the prayer is not maintainable. The writ petition is liable to be dismissed and is dismissed with respondents being free to proceed for eviction of petitioners in accordance with law.

(iii)CWP No.6745/2002(Uma Shankar & anr.v.Union of India & ors.)

Petitioners had given up the challenge to the eviction order and for a mandamus to implement the compromise claimed to have been arrived at with the respondents. Petitioners had confined their prayer to allotment of alternate accommodation. In view of it being held that there is no statutory or enforceable right for grant of alternate accommodation, the prayer is not maintainable. The writ petition is liable to be dismissed and is dismissed with respondents being free to proceed for eviction of petitioners in accordance with law.

(iv) CWP No.5523/2002 (Balbir Singh and others vs. UOI & Ors)

The petitioners seek a direction to the respondents not to issue notices or to evict the petitioners in pursuance to the notice dated 19.8.2002, without providing them alternate accommodation. It is held that petitioners have no statutory or enforceable rights to seek alternate accommodation. The writ petition is dismissed with the direction that respondents are free to proceed against the petitioners for their eviction in accordance with law.

(v) CWP No.4685/2002 (Panna Lal and others vs. UOI and others)

Petitioners seek directions for allocation/allotment of shop/residential quarters. In view of their being no statutory or enforceable right to seek alternate allotment, the prayer is declined and writ petition is dismissed. The prayer for keeping the notices of eviction in abeyance also stand rejected.

(vi) CWP No.1855/2002 ( Duli Chand vs. UOI & others)

The prayer made in the writ petition is for allocation of alternate stall to the petitioner and to keep in abeyance the order dated 1.3.2002 passed by the Estate Officer. In view of it being held that there is no statutory or enforceable right for grant of alternate stall, the prayer is not maintainable. The writ petition is liable to be dismissed and is dismissed with respondents being free to proceed for eviction of the petitioner in accordance with law.

(vii) CWP No.5524/2002 (R.V.Kaushik & others vs. UOI and others

The petitioners seek a direction to the respondents not to issue notices or to evict the petitioners in pursuance to the notice dated 19.8.2002 without providing them alternate accommodation. It is held that petitioners have no statutory or enforceable right to seek alternate accommodation. The writ petition is dismissed with direction to the respondents that they are free to proceed against the petitioners for their eviction in accordance with law.

25. In case, the petitioners in the above writ petitions give an undertaking to vacate the premises within three months, the respondents may grant that time and keep action for their eviction in abeyance. However, petitioners who do not furnish any such undertaking, respondent authorities would be free to proceed against them for eviction in accordance with law.