Shri Kuldip Kumar vs Municipal Corporation Of Delhi ...
2005 Latest Caselaw 853 Del

JUDGMENT

Pradeep Nandrajog, J.

1. Vide order dated 2.8.2004 writ petition was allowed. Counsel for the respondent had not appeared on said date.

2. Review is prayed for pointing out to this court that letter dated 29.8.00 written by the Assistant Commissioner, City Zone, MCD has been misread as also the fact that pleadings of MCD in the counter affidavit have not been properly appreciated.

3. At the outset it may be recorded that creation is of the counsel for the Municipal Corporation of Delhi who chose not to appear on 2.8.2004 when matter was called.

4. Be that as it may since indeed an error has crept in my order dated 2.8.2004, it would be my duty to correct the same.

5. Petitioner prays that the impugned order dated 20.3.2003 be quashed and directions be issued to the Municipal Corporation of Delhi to permit the petitioner to carry on business at the tehbazari site allotted to him vide letter dated 29.8.2000 under the signatures of the Assistant Commissioner, City Zone.

6. Petitioner was allotted a tehbazari site near Recruitment Office at Red Fort. He found site to be uneconomical. He requested for change of site. Vide order dated 29.8.2000 he was informed that the site allotted to him stood changed from near the Recruitment Office, Red Fort to New Lajpat Rai Market near Tehbazari site No.39. Petitioner shifted to the new site but was issued the impugned order dated 30.3.2003. Impugned order reads as under:-

"Sir,

In continuation of this officer letter No. AC/CZ/00/512 dated 29.8.2002 and as per the directions of competent Authority, your open tehbazari measuring 6' x 4' open to sky which was shifted vide the above letter, is hereby shifted back to Recruitment office' from New Lajpat Rai Market on the following grounds.

1. Site is in use of garbage collection material storage by CSE Department.

2. As per the conditions of letter No. AC/CZ/00/512 dated 29.8.00 the site can be shifted to any other place by MCD in public interest.

3. The terms & conditions of tehbazari will remain same as per this office letter No. AC/CZ/00/512 dated 29.8.00."

7. Letter dated 29.8.2000 shifting petitioner from the tehbazari site at the Recruitment Office, Red Fort to New Lajpat Rai Market reads as under:-

"In continuation to this officer letter No.368/AC/CZ/2000 dated 21.6.2000 I have to inform you that DC/CZ vide order dated 25.8.2000 has been pleased to allow the change your tehbazari site from recruitment officer Red Fort to New Lajpat Rai Market near tehbazari site 39, New Lajpat Rai Market, also allowed transfer in your name from the name of Sh. Kailash Chand s/o Shri Ram Swaroop subject to following conditions:

1. .............

2. .............

3. .............

4. .............

5. .............

6. ............."

8. While allowing the writ petition I had noted the following averments made by the petitioner in para 3 of the writ petition:-

"That by the order dated 29th August, 2000 issued by the then Assistant Commissioner, City Zone, Minto Road, the aforementioned site No.41 (near site No.39) was allotted in the petitioner's name. The said order also allowed transfer in the petitioner's name from the name of one Kailash Chand who was probably the previous allottee, thus making it quite clear that the said site was never used by any department of MCD, least of all by the Sanitation (CSE) department for dumping of garbage or stocking of stores but was being allotted to different persons on Tehbazari basis from time to time. A copy of the allotment letter dated 29.8.2000 is annexed hereto and marked as Annexure P-2."

9. In the context of the pleadings of the petitioner I had understood and read order dated 29.8.2000 to convey as if site near tehbazari site No.39 to where the petitioner was shifted was a site earlier allotted to Shri Kailash Chand. I had therefore held that it was a patent false recording of a fact in the impugned order that the new site was used for garbage collection by the CSC Department.

10. Though there is no parawise reply to the writ petition, in para 3 of the counter affidavit MCD has explained the position as under:-

"3. That the tehbazari site 6' x 4' open to sky on the pavement of Netaji Subhash Marg, on Yamuna Bazar side from Chhatta Rail was initially allotted to Shri Kailash Chander, S/O. Shri Ram Swaroop, and thereafter, this site was mutated in the name of the petitioner Shri Kuldip Kumar Bahl, as per tehbazari policy. Later on the petitioner requested for the change of tehbazari site from its existing tehbazari to New Lajpat Rai Market, near Tehbazari site, 39, New Lajpat Rai Market, but the physical possession was not given to the petitioner. The said site was inspected on 11.6.2002, by the concerned official and he found that the allotted site was not under the possession of the petitioner due to the fact that the allotted site was in the occupation of the CSE Deptt. and the safai Karamcharies of the Deptt. were running their office."

11. Indeed, a perusal of order dated 29.8.2000 would reveal that MCD has intimated to the petitioner two facts. The facts being:-

(i) Allowed transfer of tehbazari from name of Shri Kailash Chand to the name of the petitioner, and

(ii) Change of tehbazari site from near Recruitment Office, Red Fort to New Lajpat Rai Market, near tehbazari site No.39.

12. Letter dated 29.8.2000 has obviously been misread by this court while allowing the writ petition. The letter does not bring out the pleadings of the petitioner in para 3 of the writ petition, extracts whereof have been noted above.

13. Presumption drawn by this court is based on a wrong fact. Letter dated 29.8.2000 does not bring out that the site to where petitioner was being relocated was previously in the name of Shri Kailash Chand. Letter clearly brings out that tehbazari has been transferred in the name of petitioner from Shri Kailash Chand.

14. Review application is allowed.

15. Order dated 2.8.2004 is recalled. Writ petition stands dismissed.

16. No costs.