Delhi Metro Rail Corporation vs Panchkuian Road Furniture Market ...
2009 Latest Caselaw 3426 Del

                              UNREPORTABLE
                 IN THE HIGH COURT OF DELHI AT NEW DELHI


             + CM Appl. No.11236/2009 in L.P.A. No.1609/2006


                                                  Date of Hearing: 21.08.2009
                                                 Date of Decision: 28 .08.2009


#Delhi Metro Rail Corporation                     .....Appellant
!                                     Through: Mr.Pushkar Sood with
                                      Ms.Kanchan Bala

                    Versus


$Panchkuian Road Furniture Market Asson.           .....Respondents

                                      Through Sh.P.N. Lekhi, Sr. Advocate
                                      with Mr.Ravinder Kumar and Mr.Samar
                                      Bansal for the respondent.
                                      Mr.Rajeshwar Kumar Gupta for the
                                      applicants.

CORAM :-
*THE HON'BLE MR.JUSTICE A.K.SIKRI
THE HON'BLE MR. JUSTICE VALMIKI J. MEHTA

       1.Whether Reporters of Local papers may be allowed to
         see the Judgment?
       2.To be referred to the Reporter or not?
       3.Whether the judgment should be reported in the Digest?


A.K. SIKRI, J.

1. Modification of the orders dated 14.7.2009 [though in essence it is the

review of that order] is sought for by the applicants by means of this

application. By that order LPA No.1609/2006 along with other

proceedings was disposed of. There is, however, a big hurdle in the

way of the applicants. Orders dated 14.7.2009 was a consent order.

Since the applicants contend otherwise, we first embark on this

controversy. Along with LPA No.1609/2006 three more LPAs and two

Writ Petitions were taken up from time to time. It is because of the

reason that issues involved in all these cases were common. These

cases were concerned with the shopkeepers at Panchkuian Road

whose shops are sought to be taken away by the Delhi Metro Rail

Corporation (DMRC) for the purpose of MRTS. The applicants and

some other persons had filed the writ petitions. Two of these writ

petitions, including that of the present applicants, were decided by the

learned Single Judge vide judgment dated 2.6.2006. It is against that

judgment that LPAs were preferred by DMRC.

2. It is not in dispute that DMRC needs the land in question, where these

shops are situate, for Delhi Metro Rail. However, while allowing the

writ petitions the learned Single Judge was of the view that such

occupiers cannot be forcibly evicted and the proper course of action

for the authorities was to pursue legal avenues for the ejectment and

removal of these shop occupiers which had been in their possession for

decades.

3. Before the Division Bench these LPAs and writ petitions took different

course. Instead of contesting the issues, attempts were made by the

parties for amicable solution to the problem. Whereas land is required

by the DMRC, at the same time it was felt that these shopkeepers also

needed proper relocation. On 15.9.2008 after hearing the counsel for

the parties the Court observed that a satisfactory solution seemed in

the offing. We may reproduce the order passed on that date in its

entirety which gives the indication of the direction in which the matter

proceeded:-

"After parties were heard for sometime, a satisfactory solution seemed in the offing. The offer made by the Delhi Metro Rail Corporation (hereinafter to be referred as 'DMRC') which has been accepted by 104 allottees and being considered by the remaining allottees is that all the allottees shall be entitled to be accommodated in the already constructed building on Bhai Veer Singh Marg. The allocation will be by a draw of lots and out of the 192 claimants, 49 will get shops in the ground floor at the first instance and the remaining claimants shall be accommodated on the upper/remaining floors and subject to the further condition that all of them would be within 18 months of the plan being sanctioned be located on the ground floor of the additional building to be constructed by the DMRC, the appellant.

While the other respondents NDMC and MCD are present through their respective counsel, in order to expedite the fructification of this proposed settlement, it would be necessary to have the presence of Delhi Urban Arts Commission. Accordingly, we issue notice to the standing counsel of the said Commission with a direction to remain present on the next date of hearing.

The proposed plan for which sanction is being sought shall be brought to the Court on the next date of hearing. The MCD will also, in the meanwhile, ascertain the parties which are in possession of each of the 192 shops on Panchkuian Road, New Delhi, so that the process of facilitation of allotment in the new building can take place. In addition, counsel are requested to sit together to facilitate this process.

The mere allotment of a shop on any of the floor will not debar any of the allottees from bidding for any of the other shops being sold by public auction on Bhai Veer Singh Marg and the building to be constructed. The allotment shall be subject to the clearance of all license fees due to the MCD.

List on 17th September, 2008 at 2.00 p.m.

A copy of this order be given dasti to learned counsel for the parties under the signatures of the Court Master."

4. It is clear from the above that offer was given by the DMRC which was

accepted by 104 allottees there and then and remaining allottees

wanted some time to consider the same. The offer was for

accommodating all these allottees in the already constructed building

in Bhai Veer Singh Marg. Modalities for allocating them in the said

building were also stated in the order. On the next date, i.e.,

17.09.2008 counsel for all the parties reported that terms of

settlement contained in the previous orders were acceptable to all the

parties and their counsel. These included those who have preferred

present application. We are reproducing this order as well in its

entirety for the reason that it provides complete answer to the present

application filed by the applicants:-

"The terms of settlement contained in the order dated 15th September, 2008, were found acceptable by all the parties and their counsel. The learned counsel appearing for the DUAC, Sh. Srivastava is present and has been supplied with a copy of the order dated 15th September, 2008.

The urgency of the matter owing to the closure of one of the arteries of West Delhi traffic to Central Delhi was communicated to Sh. Srivastava, who has assured the Court that expeditious action would be taken but at least four weeks time is required for the same. Accordingly, the plans of the building (i.e. the Delhi Metro Buildings) sought to be constructed at Bhai Vir Singh Marg shall be submitted to the NDMC on or before 3rd October, 2008. The said Plans shall be processed by the NDMC and after clearance, the same shall be transmitted to the DUAC. The DUAC shall consider the said Plans and pass appropriate orders on the same within four weeks of receiving it from the NDMC.

The learned Senior Counsel appearing for the private respondents Sh.V.P. Singh, Shri Ashok Bhasin and

Shri Sandeep Sethi have submitted that as contemplated by the settlement and after the sanction of the Plan, some reasonable period should be provided to the respondents to shift from their present premises at Panchkuian Road. We, therefore, direct that from the date of the sanction of the Plans, as communicated to this Court and all occupants through their counsel, all the occupants shall be given a period of four weeks to shift from their present premises to the new premises.

List for directions on 31st October, 2008.

Copy of the order be given dasti to the learned counsel for the parties."

5. Thus, remaining shopkeepers also accepted the proposal. In the

penultimate para name of counsel who appeared for these applicants,

namely, Sh. V.P. Singh is mentioned whose submission along with

other counsel was confined to giving reasonable period to shift from

the present premises at Panchkuian Road. Matter was thereafter

taken up from time to time and some other modalities for effecting the

aforesaid broad terms of the settlement worked out and various

directions to the authorities were given in this behalf. Ultimately on

14.7.2009 orders were passed disposing of the appeals as well as the

writ petition on agreed terms. The steps which were taken to resolve

the issue amicably were taken note of and the issue regarding FAR was

also settled, which was pending consideration. It was specifically

recorded in this order that the private respondents, namely, the

present shopkeepers including these applicants shall remain bound by

the orders dated 17.9.2008.

6. Notwithstanding the disposal of the LPA in the aforesaid manner, i.e.,

by passing agreed order acceptable to all the parties including the

applicants, present application is filed for modification of order dated

14.7.2009. By this application entire issue is sought to be reopened.

Endeavour is made to demonstrate that only 7 ft. area in width falling

in these shops is required by DMRC and as remaining land in

possession of these shopkeepers is not required, that could not be

taken. In this process arguments are made by learned counsel for the

applicants that the applicants should not be deprived of their

fundamental right to carry on business. Plea of violation of Article 300-

A of the Constitution is also raised. Mr. Lekhi has gone to the extent of

arguing that provisions of the Delhi Metro Rail Act 1978 have not been

followed while seeking to take possession of the land and therefore,

action of DMRC is not valid. A passionate attempt is made by

contending that when order dated 14.7.2009 is erroneous, the Court

should not feel shy in correcting such an error. For this proposition the

learned senior counsel has relied upon the judgment of the Apex Court

in M.S. Ahlawat v. State of Haryana and Another, (2000) 1 SCC 278

where the Court observed that "to perpetuate an error is no virtue but

to correct it is a compulsion of judicial conscience". Our attention is

also drawn to the judgment in Secretary of State for the Home

Department v. MB Secretary of State for the Home Department v. AF,

2008 (1) All. E.R. 657 where similar message is echoed by the House of

Lords in England.

7. All these fanciful arguments have no legs to stand. Before adverting to

this application, we chose to point out the manner in which settlement

was arrived at between the parties with the purpose of demonstrating

that a satisfactory workable solution acceptable to all the parties was

arrived at and consent orders were passed. It is stated at the cost of

repetition that applicants as well as their counsel had also specifically

consented to the arrangement arrived at on the basis of which orders

were passed from time to time which culminated into final orders

dated 14.7.2009. In these circumstances, it is not open to the

applicant even to file such an application and raise such issues. It is

impermissible to thwart such a consensual arrangement arrived at by

the parties during the court proceedings with the active support of the

court. The only plea, though a feeble one, which is taken is that

applicants were not consenting parties and confusion was created by

other writ petitioners and the appellants. This is far from truth. The

orders reproduced above stare at the face of the applicants which

manifest specific consent of the applicants as well as their counsel

given by the applicant after due consideration and after taking time to

deliberate upon the same. It was a conscientious decision by the

applicants and no legal plea is even raised which could nullify

arrangement arrived at by the parties by means of settlement.

8. Even the premise on which the present application is filed has no basis.

Though we are not even required to go into this issue, but are

constrained to remark that the requirement of the DMRC is not to the

extent of 7 Ft. or near about, which is the case sought to be made out

by the applicants. Learned counsel for the DMRC has referred to the

plans already on record as per which entire area in occupation of these

applicants is needed by it. We may also state at this stage that all

other shopkeepers who were parties in the other LPAs or the writ

petitions still stand by the terms of settlement/arrangement on which

the matters were disposed of.

9. In these circumstances, we dismiss this application as wholly frivolous

and amounting to misuse and abuse of law, with costs quantified at

Rs.25,000/- to be paid to the Delhi High Court Mediation and

Conciliation Centre.

                                                        (A.K. SIKRI)
                                                           JUDGE



August 28, 2009                                     (VALMIKI J. MEHTA)
hp.                                                      JUDGE