Mohd. Ashqin Qureshi vs Municipal Corporation Of Delhi ...
2005 Latest Caselaw 1353 Del

JUDGMENT

Pradeep Nandrajog, J.

1. On 7.1.1991, the Slum and JJ Wing, then under the management and control of the Delhi Development Authority formulated a policy for regularization of unauthorised occupants in slum areas. The policy took note of the fact that the Slum Wing was managing over 3,000 properties in the walled city of Delhi wherein about 15,000 families were residing. These properties were either transferred by the Ministry of Rehabilitation or were acquired under DAG Scheme. The policy noted that more than 50% of these properties have changed hands and were under occupation of persons who were not paying any license fee to the department. On the one hand, the Department was not earning any revenue and on the other hand, had to incur expenses towards maintenance of these properties. It was noted that proceedings under Public Premises (Eviction of Unauthorised Occupants) Act, 1971 had proved ineffective due to various problems.

2. The policy noted that properties were changing hands due to various socio-economic reasons. It was noted that residents of these properties were reluctant to move out due to the central location of these properties and nearness to their place of work. It was also noted that this was resulting in large scale corruption in the department as some unauthorised occupants, after bribing the staff, were managing to deposit the license fee.

3. Policy decision taken was to regularise the possession of such unauthorised occupants i.e. all those who had taken possession from the original occupants without permission from the authority or those who had otherwise unauthorisedly taken possession of the properties. Para 8 of the policy carved out an exception. The exception was that those who had trespassed into sealed properties as also those who had raised unauthorised structures on the land cleared by the department after demolition would not be entitled to the benefit of the policy.

Para 8 of the policy reads as under:

"8. However, the unauthorised occupants who fall in the following categories shall not be considered for their regularization as future licensees--

(i) who unauthorisedly occupy the properties which were sealed by the department.

(ii) who have raised unauthorised structures on the lands cleaned by the department after demolition of the properties."

What should be the license fee charged from the unauthorised occupants of the slum was set out in para (9) of the policy. The same reads as under:

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Category of                     Existing rate of            Proposed rate
unauthorised                    damage per sq.              of per sq. mtr.
occupants who                   mtr. in Rs.                 Residential/
entered the                     residential                 commercial
premises                        Commercial
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(i) Prior to 31.12.79              2/-                          15/-
(ii)Between 1.1.80                 4/-                          20/-
(iii) between 1.1.84               4/-                          25/-
(iv) between 1.1.87                5/-                          30/-
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4. Para 11 of the policy, dealing with cases where there was a change of hands after 30.6.1990 stipulated that regularization of these unauthorised occupants a licensee shall be allowed after payment of damages twice the rates proposed for unauthorised entrants between 1.1.1987 and 30.6.1990. For each further change of hands the rate of damages for regularization were to be doubled. The policy was further fine tuned vide resolution No. 101 in the meeting of the Corporation held on 15.5.2000. Qua residential properties policy remained same except the license fee was increased.

5. Claim of the petitioner is that his father Hazi Abdullah took possession of property No. 7581/XIV near Masjid Kaluwali Madrasa Rahimiya Quasab Pura, Sadar Bazar, Delhi. Petitioner claims that since 1947 the family has been occupying the property.

6. A writ petition was filed in this Court by one Mohd. Iqbal. He alleged that the petitioner had effected unauthorised construction in the property in question. On 1.10.2002 directions were issued in the said writ petition to the Municipal Corporation of Delhi to remove the unauthorised constructions and proceed against the petitioner in accordance with law. Though the petitioner was imp leaded as respondent No. 4 in the said writ petition which was numbered as CW No. 4039/2001, he was proceeded ex parte when order dated 1.10.2002 was passed.

7. Petitioner filed CM No. 11811/2003 in the writ petition and pointed out that order dated 1.10.2002 was passed behind his back. He pointed out that he was not served with the notice issued in the writ petition. Vide order dated 22.10.2003, CM 11811/2003 was disposed of holding that no right of the petitioner was affected by the order dated 1.10.2002 for the reason the order required the Municipal Authorities to determine after notice to the petitioner, whether unauthorised construction was effected by him on the property and if any unauthorised construction was found, the same was to be demolished.

8. On 20.5.2002, a status report was filed by the Municipal Corporation of Delhi in CW No. 4039/2001. The status report informed this Court as under:

"That in this respect it is submitted that in compliance of the directions of this Hon'ble Court dated 9.7.2001, property bearing No. 7581, near Masjid Kaluwali, Quasab Pura, Sadar Bazar, Delhi was inspected on 17.5.2002 and during inspection has been noticed that the property consist of ground floor, first floor and second floor. There are three shops at ground floor in front side and a Madrasa (Muslim School) is being run in the back portion, whereas, the rest of property is in residential nature. It is further submitted that at first floor there are four rooms, kitchen, latrine and bath, whereas, at second floor there are two rooms. Neither any unauthorised construction seen in progress nor there is any booking of unauthorised construction as per the Misal Band Register maintained by the building department.

9. The Estate Officer, Slum and J.J. Wing also proceeded against the petitioner. A notice was served upon the petitioner to show cause as to why he be not evicted from the property as it was alleged that he was an unauthorised occupant and additionally for the reason there was unauthorised construction effected by him in the property.

10. Petitioner defended the proceedings. On 12.7.2004, the Estate Officer passed an eviction order. Following are the operative directions issued--

(i) the respondent and all other persons who may be in occupation of Property No. 7581/XIV Madarsa Rahimiya Quasab Pura, Sadar Bazar, Delhi or any part thereof to vacate the said premises within 15 days of the date of publication of this order. In the event of failure of refusal to comply with this order, within the period specified above the respondent and all other persons concerned shall be evicted from the said premises, if need be by use of such force as may be necessary.

(ii) unauthorised construction measuring 89.15 sq. metres carried at second floor of Property No. 7581/XIV Madarsa Rahimiya Quasab Pura, Sadar Bazar, Delhi as shown in site plan Exhibit MW1/B be removed by the respondent. In the event of failure or refusal to comply with this order, the said work shall be demolished by the Estate Officer or the Officer authorised by him and the expenses of such demolition shall be recovered from the respondent.'

11. Order dated 12.7.2004 notes that the property in question was a composite property and was transferred to the Slum and JJ Department on 1.9.1961 by the Ministry of Rehabilitation, Government of India. The order notes that in the list of occupants of the properties transferred by the Ministry of Rehabilitation, name of the petitioner was recorded as an unauthorised occupant. It was also noted that the petitioner had not been paying any license fee.

12. Petitioner filed an appeal under Section 9 of the P.P. Act, 1971 against the eviction order dated 12.7.2004. Petitioner pointed out that on 7.9.1974, Custodian of evacuee property demanded license fee in sum of Rs. 200/- which was paid. Petitioner pointed out that the status report filed by the MCD in CW No. 4039/2001 showed that there was no unauthorised construction on the property and that no demand towards license fee was ever raised.

13. The appeal which was numbered as P.P. No. 140/2004 was dismissed vide order dated 23.8.2004.

14. Present petition was filed. Reliance has been laid upon the policy decision aforenoted. Order of eviction and the order dismissing the appeal have been challenged.

15. Mr. Jayant Bhushan, learned Senior Counsel appearing for the petitioner conceded that if there was any unauthorised construction in the property, same has to be demolished. Counsel urged that the finding by the Estate Officer and the finding in appeal that there existed unauthorised construction was contrary to the status report filed by the MCD in CW No. 4039/2001. Counsel urged that the impugned orders did not properly appreciate the status report filed by the Municipal Authorities.

16. On the issue of eviction, learned Senior Counsel urged that the learned Appellate Court has wished away the policy decision relied upon in a most wishy-washy manner. Counsel urged that it was never pleaded by the respondents that the policy decision was not implemented.

17. A perusal of the order dated 23.8.2004 dismissing the appeal shows, that the learned Appellate Court has considered the report submitted by the Municipal Authorities in the writ petition as also the evidence led before the Estate Officer while determining the issue of unauthorised construction. The findings are as under:

"I have carefully considered the rival contentions and perused the EO record, Perusal of the EO record reveals that order of demolition passed by the Estate Officer was based upon the evidence produced before him. MW-1 Shri H.C. Bachani, Surveyor had proved the unauthorised construction carried out by the appellant on the basis of survey report Ex. MW 1/A dated 7.6.2004 and also the previous survey report Ex. MW1/ C dated 4.8.1998. This witness has proved that a total of 89.15 sq. metre of unauthorised construction has been carried out by the appellant at second floor of the above said property. Perusal of Ex. MW1/A reveals that the Surveyor has categorically stated that unauthorised construction has been carried out in the premises. He has also referred to the earlier survey report dated 4.8.1998 which was carried out by the Surveyor Shri Rakesh Gupta. The earlier report also reveals unauthorised construction by the appellant. There are no reasons to doubt the reports Ex. MW1/A and Ex. MW1/C placed on record. These reports were prepared by the Surveyor in the official course of their duties. There is nothing on record to suggest that these Surveyors were inimical towards the appellant or had given false reports because of ulterior motive.

Learned Counsel for the appellant has, however, relied upon an affidavit dated 20.5.2002 of Shri Manohar Diwani, Executive Engineer (Bldg.), City Zone, MCD, Delhi which was filed in the Hon'ble High Court in CWP No. 4039/2001. In the said affidavit, the Executive Engineer had submitted that no unauthorised construction was seen in progress and extent of unauthorised construction could not be verified at this time. The learned Counsel for the appellant has therefore, argued that the Estate Officer was wrong in passing the order of demolition.

I have given my thoughts to the above contention of the learned Counsel for the appellant. In my opinion, the order of demolition by the Estate Officer is based on cogent documentary evidence on record. He has relied upon the survey reports Exs. MW1/A and C. The affidavit of Shri Manohar Diwani, dated 20.5.2002 cannot be of any help to the appellant because it only states that extent of unauthorised construction could not be verified at that stage. It nowhere states that unauthorised construction has not been carried out by the appellant. On the other hand, there is clear evidence in the form of survey reports which reveal unauthorised construction and even gives the exact area and measurement. The contention of the learned Counsel for the appellant is, therefore, rejected."

18. I concur with the reasoning of the Appellate Authority. I may additionally note that while submitting the status report in CW No. 4039/2001, the Municipal Engineer primarily based the report on site inspection in the context where he could see unauthorised construction being carried out. The report categorically informs the Court that since property was exempted from payment of house-tax, there is no entry in the Building Watch Register maintained by the House Tax Department and as a consequence, extent of unauthorised construction, if any, could not be verified. As against that, the Estate Officer as also the Appellate Authority have relied upon the survey reports dated 4.8.1998 Ex MW1/C and the survey report dated 7.6.2004 Ex MW1/A.

19. But, this issue to my mind becomes irrelevant for any decision today inasmuch as in para 6 of the response to the writ petition, respondent has pleaded as under:

"The contents of para 6 are denied as incorrect. It is submitted that no demand for damages has been raised from the petitioner. Moreover, the payment of damages does not regularise the unauthorised occupation. It is further submitted that unauthorised construction has already been demolished as per orders passed by the Estate Officer.''

20. Admittedly, as of today no unauthorised construction exists in the property.

21. Dealing with the policy to regularise the possession, learned Appellate Court has held as under:

"I have given my thoughts to the above contention of the learned Counsel for the appellant and am afraid that the same cannot be accepted. This is not the forum to challenge the decision of the MCD for not charging damages from the appellant. This Court is not aware about the reasons as to why occupation of the premises of the appellant has not been authorised by the respondents. This Court is also not aware about the fact whether the policy formulated by the MCD has been implemented or not? It has not been proved before this Court whether unauthorised occupation of any unauthorised occupant has been regularized under the above scheme. This Court is also not the forum to challenge the said issues. This Court being an Appellate Court under the PP Act has only to decide the fact whether the order of eviction passed by the Estate Officer is in accordance with law or not? This Court has only to consider the question whether the appellant was occupying the premises authorisedly. This Court has not to decide the fact whether the MCD ought to have taken steps to regularise the occupation of the appellant. As discussed above, the limited question to be answered by this Court is whether the appellant is occupying the premises authorisedly? In my opinion, the answer certainly lies in negative and, therefore, the contention of the learned Counsel for the appellant cannot be accepted.

22. To my mind, learned Appellate Court has brushed aside the issue by recording that the Court is not aware whether the policy formulated by the MCD has been implemented or not. It was not the case of the Corporation that the policy decision relied upon was not implemented. If there was any doubt in the mind of the learned Appellate Court it ought to have sought the necessary clarification from the respondent.

23. Be that as it may, in the present proceedings, learned Counsel for the Slum and JJ Wing did not dispute the existence and the implementation of the policy decision relied upon by the petitioner. However, learned Counsel Mr. Vinay Bhasin Sabharwal argued that in view of para (8) of the policy decision, petitioner was not entitled to the benefit of the policy decision.

24. A perusal of the para 8 of the policy decision shows that only two categories of unauthorised occupants have been kept outside the purview of the policy. First category comprises those who unauthorisedly occupied properties which were sealed by the department. Second category is of those who have raised unauthorised structures on lands cleaned by the department after demolition of the properties.

25. Petitioner is not charged with having occupied the property which was sealed by the department. The petitioner does not come within the ambit of the first exception to the policy. As regards the second, it has to be noted that not all who have raised unauthorised structures have been taken outside the purview of the policy. Only those who have raised the unauthorised structures on lands cleaned by the department after demolition of the properties have been made ineligible for regularisation.

26. Unauthorised construction on an existing property is different than a rank trespass on vacant land who thereafter raises a structure thereon. The second exclusion is only of those who trespass upon the lands cleaned by the department and thereafter raise unauthorised structures.

27. Petitioner is accordingly held entitled to the benefit of the policy framed by the respondents.

28. While construing the provisions of the policy, the Court is bound to give a reasonable and non-arbitrary interpretation to the policy. Further, if there are two interpretations possible, the one which furthers the object of the policy must be adopted.

29. Noting the stand of the respondent that the unauthorised construction has since been demolished and in view of the policy decision framed by the respondent and as interpreted above, writ petition stands disposed of quashing the order of eviction dated 12.7.2004 and the order dated 23.8.2004 dismissing appeal No. PPA 140/2004. Directions are issued to the respondent to assess the damages/license fee payable by the petitioner in terms of the policy decision dated 7.11.1991, as modified by subsequent resolutions. Demand raised would be paid by the petitioner within four weeks of intimation. It is made clear that if the petitioner does not clear the demand or subsequently defaults, action would be liable to be taken for eviction as a defaulter.

30. No costs.