Mohd. Ismail vs Slum & Jj Department (Mcd)
2009 Latest Caselaw 5342 Del

                      IN THE HIGH COURT OF DELHI

                     Writ Petition (Civil) No.819/2009


                                  Date of decision: 22nd December, 2009

         MOHD. ISMAIL                                ... Petitioner
                         through: Mr. Apurb Lal, Advocate with Mr. Dalip
                                  Singh, Advocate

                                   VERSUS

         SLUM & JJ DEPARTMENT (MCD)                 ....Respondent

through: Mr. O.P. Saxena, Advocate with Ms. Shradha Saxena, Advocate

CORAM:

HON'BLE MS. JUSTICE GITA MITTAL

1. Whether reporters of local papers may be allowed to see the Judgment? Yes

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Yes Digest?

GITA MITTAL, J (Oral)

1. The present case is yet another instance of the difficulties faced by

a victim of forcible eviction by demolition of property. The petitioner was

in occupation of property bearing no.3339, in Ward No.XIV, Sarai Khalil,

Sadar Bazar, New Delhi which underwent demolition in the year 1975-76.

2. As per the report of details of persons and properties which were

demolished prepared by the CID of the Delhi Police, the petitioner was

identified at serial no.521. The details in respect of the occupancy of the

petitioner were noted as follows:-

     "Sl.No.                           :    521

     House No.                         :    3339/XIV

     Area in Sq.ft. Covered or Open    :    22'x12' 22'x12 FF



      No. of Rooms                    :      4

     Name of Head of family
     rooms with particulars          :      Mohd. Ismail, S/o Mohd. Ishaq

     Total No. of families           :      1

     Authorised/Un-authorised        :      A

     Industry if any                 :      Residence & factory

     Whether capable to purchase
     or not                          :      P

     Rent receipt No.                :      RR No.741071

     Ration Card No.                 :      R.C.3542

                                     :      Lic. No.31083"

3. The respondents have placed before me the copy of the receipts of

the rent which was paid by the petitioner towards the said occupation to

the office of the Regional Settlement Commissioner (Management Wing)

of the Ministry of Rehabilitation for different periods towards residential

and commercial occupation.

4. The petitioner was also issued a demolition slip no.3743 dated 16 th

May, 1976 towards the demolition of the property. An allotment letter

dated 27th November, 1976, was issued alloting a flat bearing no.A-7/53-C

at Inderlok to the petitioner. This allotment was substituted by the

allotment of the flat bearing no.A-2/1, MIG Flats, Sarai Khalil, Sadar Bazar,

Delhi on 24th July, 1985 which was constructed at the site of the

demolition by the respondent.

5. It appears that the entitlement of the petitioner was being

considered for allotment of an industrial plot as well as a tenement. In

this behalf, the petitioner places reliance on a letter dated 26th July, 1976

from the office of the commissioner, Slum & JJ Department (which was

then under the DDA) requiring the petitioner to produce his ration card

against the demolished property. It appears that the respondents was

making allotment of the residential premises at Inderlok while

commercial property was being allotted at Shahzada Bagh. This

communication informed the petitioner that upon failure to appear, his

allotment for Inderlok and Shahzada Bagh shall be cancelled and

possession shall be taken by the Department.

6. The admitted position is that the petitioner was unable to appear

before the respondent. However, while the matter progressed for

allotment of the residential property as noted above, no industrial or

commercial property was allotted to the petitioner.

7. In this background, the petitioner relies on repeated representations

made to the respondent including those dated 18th June, 1986, 4th

January, 1988, 25th February, 1991, 26th June, 1998, 29th December, 1998,

31st August, 2005 & 27th March, 2006. Perusal of these representations

would show that the petitioner has disclosed the following reasons for his

inability to appear before the respondents, actively pursue and monitor

the matter:-

(i)     Demolition of his earlier property;

(ii)    The petitioner had large and young family consisting of his wife, four

        daughters and two sons;

(iii) No source of income and resultant financial constraints and crisis;

(iv) The petitioner claims to have met with an accident resulting in a

major injury. As a result, he was unable to appear before the

respondent despite receipt of the letter dated 26th July, 1976;

(v) The petitioner was confined to bed and could not provide for the

family resulting in his children having to abandon studies and to

somehow look for sources of livelihood for the family by way of labour;

(vi) On account of inability to earn, all assets of the family had been

disposed of and the family was living hand to mouth.

8. The original record of the respondents has been placed before me

which has been examined. Perusal thereof would show that the misery

of the petitioner has only aggravated with every passing moment and

communication. Nothing is placed before this court to disbelieve the

above condition of the petitioner.

9. Alongwith the representations which have been placed before the

respondent, the petitioner submitted copies of the requisite and

supporting documents which include not only a copy of the ration card

but also the receipt issued by the Office of the Regional Settlement

Commissioner towards the payments of rent. The record of the

respondent also contains a copy of the Registration Certificate of

Establishment bearing no.3/6720/II dated 11th February, 1973 issued

under the Delhi Shops & Establishment Act, 1954 to the petitioner

towards his business being run under the name and style of Modern

Cabinet Manufacturing at the subject premises. This authority has

thereby certified that the petitioner was maintaining a commercial estate

which was duly registered under the provisions of Delhi Shops &

Establishment Act at the demolished premises. Certain receipts issued by

the petitioner towards the business activities are also available in the

files. The petitioner had also submitted a letter dated 9th February, 1970

issued by the New Bank of India to him confirming the balance standing

in the current account maintained by the Modern Cabinet Manufacturing

at No.3339, Sarai Khalil, Sadar Bazar, Delhi.

10. The contention of the petitioner to the effect that he had suffered

injuries and was confined to bed is manifested from certain reports from

the Holy Family Hospital, New Delhi which confirm serious fractures

suffered by the petitioner in the right femur bone as well as the knee

joint. The record placed before the respondent relates to the period 1976

to 1983.

11. So far as the consideration of the petitioner's entitlement for grant

of a commercial plot is concerned, the respondent addressed a

communication dated 12th June, 2003 to the petitioner requiring him to

produce the documents relating to the claim for allotment of commercial

plot in lieu of the demolished property so that the case could be put up

before the competent authority for necessary orders. The petitioner

contends that when he approached the respondent pursuant to this

communication, the concerned official of the respondent recorded that no

original allotment file pursuant to allotment of commercial plot to the

petitioner was available in the office and orders were sought from the

competent authority if the case was to be processed before the allotment

committee.

12. In this background, the petitioner contends that he had approached

the Public Grievances Commission. In the proceedings held on 5 th August,

2004 before the Public Grievances Commission, the respondent had

stated that the file with regard to allotment of the flat to the petitioner

was available in the record which can be produced whenever required to

process his case for allotment of the alternative plot.

13. From the above facts, it is evident that the petitioner's case had not

been placed before the Land Allotment Committee and had not been

considered for allotment of the commercial property.

14. Mr. O.P. Saxena, learned standing counsel for the respondent has

contended that the very fact that only a residential property was allotted

to the petitioner in 1976 would show that there was deemed rejection of

the petitioner's request for a commercial property. This submission has

to be noted only for the sake of rejection. As noticed above, as late as on

the 12th of June, 2003, the respondents themselves had written to the

petitioner to produce original documents for processing of his case. In

any case, the original records produced do not show that the entitlement

of the petitioner had been rejected by the respondents by any order till

date.

15. A noting dated 30th May, 2003 stands recorded which is to the effect

that "no original allotment file pertaining to allotment to Shri Mohd. Ismail

is available in the office. If the case is to be processed in allotment

committee, the CA (Competent Authority) may pass an order. As at

present, no Allotment Committee is functioning, as and when Allotment

Committee is constituted, the case of Shri Mohd. Ismail shall also be put

up to Allotment Committee with prior orders of the competent authority".

The officer recommended calling the petitioner to produce the

original documents. Based on this noting, the matter was processed and

resulted in issuance of the said letter dated 12th June, 2003.

16. Coupled with the respondents response to the Public Grievance

Committee would show that the respondents had not processed the

petitioner's case as they had misplaced his file for some time.

17. The record reflects that in response to the letter dated 12th June,

2003, the petitioner submitted a representation with documents before

the respondent which included the registration under the Delhi Shops &

Establishment Act, communication from the New Bank of India and ration

card, rent receipts etc.

18. The petitioner was thereafter informed by a letter dated 23rd

February, 2005 that the matter has been referred to the Allotment

Committee (S&JJ) to examine his claim regarding allotment of commercial

plot in lieu of his demolished property.

It is evident from this communication that till such date, the

respondent had not considered the petitioner's case as having been

rejected at any point of time.

19. Inasmuch as nothing further transpired so far as the allotment of the

plot to the petitioner is concerned, despite several representations

noticed hereinabove, the petitioner filed the present writ petition on 30th

June, 2009 seeking the following prayer:-

"(i) Direct the respondent to consider the case of the Petitioner for allotment of commercial plot measuring 80 sq. mts. against the demolished property No.339/XIV, Sarai Khalil, Sadar Bazar, Delhi as per their Scheme and policy framed by them in the interest of justice; &

(ii) Call for the records of the case of the petitioner pertaining to demolished property No.3339/XIV, Sarai Khalil, Delhi for perusal"

20. Along with the writ petition, the petitioner has placed reliance on

several note-sheets of the respondents which have been obtained by him

in response to queries under the Rights to Information Act, 2005 (`RTI

Act' hereafter for brevity) On consideration of these notings, this court

passed an order on 9th February, 2009 requiring the respondents to

inform the court with regard to the subject matter of the writ petition.

On 26th February, 2009, learned counsel for the respondent had

submitted that the case of the petitioner had been placed before the

Allotment Committee for consideration. An adjournment was sought to

enable the respondent to convey the decision of the Land Allotment

Committee on record.

21. This was followed by an order dated 28th April, 2009 when the

respondent sought time on the ground that the documents furnished by

the petitioner are being verified by the respondents and that the

verification could not be completed on account of pre-occupation of the

officers in election duty.

22. It is only thereafter that the respondents filed an affidavit in July,

2009 contending that the meeting of the allotment committee was held

on 9th April, 2009, 16th April, 2009 and 6th May, 2009. It has been stated

that despite a notice dated 30th April, 2009 to the petitioner to attend the

meeting with the record, he failed to do so on 6th May, 2009. So far as

the photocopy which has been submitted by the petitioner as back as on

17th June, 2009 is concerned, it was contended that the same was not

duly attested and consequently, it is not deemed necessary to verify the

documents from the concerned departments/authorities. It is further

stated that the petitioner also did not appear before the Land Allotment

Committee on 11th May, 2009 and that he did not respond to the notice

requiring him to appear on 25th May, 2009, 8th June, 2009 or 3rd July, 2009.

The submission is that the documents were more than thirty years old

and that the petitioner had failed to submit attested copies of the

documents. For this reason, the claim of the petitioner was rejected by

the Land Allotment Committee and the communication dated 27th July,

2009 has been sent to the petitioner.

23. The petitioner has assailed on affidavit all contentions made by the

respondent in the affidavit as well as the communication dated 27th July,

2009. It has been contended that in response to the letter dated 27th

February, 2009, the petitioner had gone to appear before the Allotment

Committee on 3rd March, 2009 when he was wrongly told to go away.

Pursuant to the letter dated 30th April, 2009, the petitioner again went to

appear in the proceedings before the Land Allotment Committee on the

5th of May, 2009. This time, for the reason, that he did not have the letter

dated 30th April, 2009 with him, he was not permitted to attend the

meeting. The petitioner places reliance on a detailed representation

setting out all the foregoing facts including the documents which the

respondents were requiring from him duly submitted on the 5th of May,

2009 by hand with the Deputy Commissioner/Chairman, Allotment

Committee of the Slum & J.J. Department of the MCD. The petitioner

assails the correctness of the statement made in the affidavit as well as

the letter dated 27th July, 2009 in this background.

24. Perusal of the communication issued on 27th July, 2009 would show

that the only reason for rejecting the petitioner's case was for the reason

that "he did not turn up along with the original/attested copies of relevant

documents to substantiate his scheme for allotment of commercial plots".

It has further been contended that so far as the CID survey is

concerned, the same could not be verified by the Delhi Police on the

ground that the same was old and the relevant records were not available

after a lapse of thirty years. A submission has also been made by Mr.

O.P. Saxena, learned standing counsel to the effect that the CID report

was not prepared by the office of the respondents.

25. Mr. Apurb Lal, learned counsel for the petitioner has drawn my

attention to a noting dated 13th March, 2009 in the records of the

respondents wherein it is clearly recorded that the eligibility of the

families were determined on the basis of the CID report which has been

placed on the correspondence side at page 179 of the respondent's

original records.

It has further been contended that there is nothing on record to

support the petitioner's plea that he was using the demolished property

for commercial user. In this behalf, Mr. Saxena has placed reliance on

only the demolition slip.

26. On the other hand, I find that the commercial user of the

demolished property by the petitioner is manifested from the registration

certificate issued as back as in 1973 by the Registrar of the Shops &

Establishment constituted under the provisions of Delhi Shops &

Establishment Act. In addition thereto, the petitioner appears to have

operated a bank account in respect of the business from the said

premises. The CID report has been relied upon by the respondent for the

purposes of allotments, also manifests the fact that the petitioner was

using the property for both residential and commercial purposes.

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I also find that the petitioner has placed reliance on the notings

obtained in answer to RTI queries upon the respondents which establish

the commercial user by the petitioner of the demolished property.

27. Even if the documents submitted by the petitioner to the

respondents were to be disbelieved, I find that the respondents have

themselves handed over in court copies of the such rent receipts issued

by the Department of Rehabilitation which manifest that the petitioner

had been paying rent for commercial user of the property. In addition

thereto, in noting after noting the respondents have quantified the

charges which the petitioner was liable to pay in respect of the

demolished property. These charges include components for both

residential as well as commercial user. The noting dated 4th August, 1986

(page 5/N) has quantified the liability of the petitioner to pay a sum of

Rs.11,190/- as damages for commercial user and Rs.2,238/- for

residential user for the period w.e.f. 1st January, 1969 to 16th May, 1976.

The officer of the respodents has also noted that these damages should

have been recovered prior to the issuance of `No Objection Certificate' to

the petitioner. This apportionment of the damages towards commercial

and residential components has been repeatedly mentioned thereafter in

several notings in the respondent's file upto 13th March, 2009. After

these notings and the receipt of the damages, it certainly does not lie in

the mouth of the respondents to contend that the petitioner was not

having a commercial establishment in the demolished property.

28. I find that on 13th March, 2009, the respondents have recorded that

demolition was effected as back as in the year 1976 and all eligible

affected families were allotted the residential as well as commercial

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property on the basis of the CID report. In the above background,

certainly, there is no basis at all for submission made by learned counsel

for the respondent to the effect that the petitioner had failed to establish

that there was no commercial user in the subject premises.

29. So far as the reliance on the demolition slip which was issued to the

petitioner as a sole basis for assessment of the eligibility and entitlement

of the petitioner to the commercial plot is concerned, the same is also not

sustainable. As noted by the respondents repeatedly, eligibility has been

determined based on the CID report and not on the basis of the

demolition slip. In any case, the respondents have confirmed the

commercial user of the premises by the petitioner for which he has been

required to pay damages as well.

30. Mr. Saxena, learned standing counsel for the MCD has urged that

the writ petition is grossly belated and the petitioner is disentitled to any

relief.

31. I find that the petitioner's case was never placed before the Land

Allotment Committee till 2009 as is evident from the above narration of

facts. The petitioner has adequately explained the circumstances for his

inability to approach the respondents on account of the accident which he

had suffered shortly after the demolition and also dire financial

constraints. Undoubtedly, the entire effort of the petitioner would have

gone towards looking after his family which included six children of young

ages. Their pitiable condition is manifested from contention of the

petitioner that he had to withdraw his children from schooling for want of

funds and they are all illiterate today. The petitioner today is 70 years of

age.

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32. For more than 33 years, the petitioner is struggling to get allotment

of a plot to which he was entitled as per the scheme in view of the

forcible eviction in 1976. This allotment may have enabled the petitioner

to eke out a living.

33. The foregoing facts clearly disclose a reasonable explanation as to

why there was delay in approaching this court by the petitioner. The

respondents are responsible for the same.

34. The respondents have written to the petitioner in 2003 and 2006

that they are processing the petitioner's application. The petitioner's

case has been considered by the Land Allotment Committee only in July,

2009. The petitioner has explained the circumstances which have been

noticed hereinabove.

35. Delay and laches do not result in an absolute prohibition to

maintainability of a writ petition. Such a prohibition and restraint in

exercise of discretion is exercised as a rule of practice based on sound

and proper exercise of discretion. In AIR 1974 SC 259 Ramchandra

Shankar Deodhar and Ors. Vs.The State of Maharashtra and Ors.,

it was held that there is no inviolable rule that whenever there is a delay,

the court must necessarily refuse to entertain the petitioner. The

question of exercise of such discretion has to be premised on the facts of

each case.

36. The above facts clearly manifest what has been observed on prior

occasions by me. The petitioner over the entire period has been located

at a distance of less than ten kilometers to reach this court. In WP (C)

No.10659/2009 entitled Shamim Vs. Additional Commissioner, Slum & J.J,

MCD decided on 16th November, 2008, I have observed as follows:-

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"xxxxxx 17. The present case is a glaring instance of the hard reality that access to justice is not limited to access to courts. Undoubtedly, the constitutional mandate creates an ideal legal system that treats everyone equally. The legal system seeks to ensure protection of equality, liberty and justice. However, to those living on the fringes of society and are marginalised, the psychological ability and impetus to take the decision to approach the court would be lacking. There is neither the finance nor the necessary family or social support system to facilitate access to the formal justice dispensation mechanisms. Illiteracy and lack of awareness, fear and lack of trust in judicial authorities may also constitute tremendous barriers.

18. The very fact that the MCD has created the formal machinery by way of the Slum & J.J. Department concerned with housing of the urban poor, reflects the recognition of problem in Delhi. The rights which are involved are really all constituents of the right to life guaranteed under Article 21 and would include not only shelter but also education of the children, drinking water, toilets & sewage and implementation of the court directions of the Apex Court with regard to demolitions and relocations. The present case may be illustrative of a larger problem and deserves to be examined by the Delhi High Court Legal Services Committee and the Delhi Legal Services Authority who may explore the possibility of joining para clinicals and the officials of the Slum & J.J. Department to run formal legal aid clinics, if not already functioning, in the resettlement/relocation colonies and such places as may be considered appropriate."

Directions have been issued to the Secretary of the Delhi High

Court Legal Services Authority & Secretary, Delhi High Court Legal

Services Committee to consider issues relating to the Slum & J.J.

Department.

37. In the above facts, the objection that this writ petition is barred on

grounds of delay and laches is wholly misconceived.

38. Yet another objection taken by learned counsel for the respondent

to the effect that no substantive challenge to the order dated 27th July,

2009 has been made in the writ petition. Mr. Apurb Lal, learned counsel

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for the petitioner submits that the petitioner has invoked the

extraordinary jurisdiction of this court and grant of relief to the petitioner

should not be impeded on this technical objection. He has made a prayer

that in view of the above facts, the stand of the respondent before this

court is contrary to the real facts borne out from the notings of the

respondents. A prayer is made that this consideration would be covered

in the prayers as framed. It is further contended that this court is

adequately empowered to mould the relief even in view of the extreme

hardship being faced by the petitioner by the delay. I find substance in

these submissions made by learned counsel for the petitioner.

39. Even otherwise, the respodents have rejected the petitioner's claim

on the sole ground that he did not place the attested copies of the

documents before them and not on merits. This by itself shows that

there has been no application of mind to the established facts. The

record of the respondents extensively establishes that the petitioner was

using the demolished property for commercial user and this position

stands accepted and admitted by the respondents. The respondents

have also accepted the petitioner's entitlement inasmuch as they have

admittedly allotted the residential component of the petitioner's

entitlement. No additional plea is required to be made or documents

considered so far as the order dated 27th July, 2009 is concerned. The

petitioner has already laid a challenge to the denial of the commercial

component of his allotment in the writ petition.

40. This objection deserves to be rejected for yet another reason. In

(2007) 8 SCC 705 Chairman, Indore Vikas Pradhikaran Vs. Pure

Industrial Cock and Chem. Ltd. and Ors., it was contended that the

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better living conditions and the right of property of an individual which

although is not a fundamental right but is a constitutional and human

right. This principle has been reiterated in (2008) 14 SCC 186 Aslam

Mohammad Merchant Vs. Competent Authority & Others.

41. Resettlement against forcible eviction is a human right violation.

Such forcible eviction was without any notice. In this background, it has

to be held that the right of the petitioner for allotment in terms of the

resettlement certainly cannot be defeated on technical objections.

42. My attention is drawn to a judgment dated 13th October, 2003

passed in WP (C) No.4496/2001 entitled Abdul Qadar Vs. Slum & JJ

Department of the MCD in similar circumstances. The petitioner in that

case was also a victim of 1976 demolition. He was also forcibly evicted in

Sarai Khalil who has been denied additional allotment in view of the

disputes raised in view of certain disputes being raised between the legal

heirs of the evictee. The respondents had rejected Abdul Khalil's case on

the ground that it would result in opening of other cases. The court had

observed that the rejection of Abdul Khalil's case was unwarranted

especially having regard to the several detailed notes by the department

to the contrary. Accordingly, the order of rejection was quashed by this

court and the matter was remanded to the Land Allotment Committee to

decide the case of the petitioner on merits.

43. It is not disputed that the respondent had allotted two residential

plots as well as one plot to the family of Abdul Qadar. After the passing

of this court order, an additional commercial plot stands allotted to him.

44. In WP (C) No.1094/2008 filed by Ms. Ashiya Begum Vs. Slum & JJ

Department of the MCD, an order dated 9th January, 2009 was passed in

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similar circumstances relating to an evictee from Sarai Rohilla and

Turkman Gate. The petitioner had also assailed the failure of the

respondent to grant an alternate commercial plot to the petitioner of the

correct size. On a consideration of the record relating to Ashiya Begum,

by the letter dated 9th January, 2009, this court directed the respondent

to grant hearing to the petitioner before taking a decision on a

representation for additional plot. The respondent was directed to pass a

speaking order within a period of four weeks from the date of hearing.

45. Learned counsel for the petitioner has contended that the original

certificate of the registration of the petitioner's establishment is available

with him. The same has been produced before me. The only ground for

denial of the plot to the petitioner is failure to file self attested copies of

the documents. In the light of the above discussion and the notings in

the record of the respondents, the demand for these documents was

clearly unwarranted.

46. In view of the above, it is directed as follow:-

(i) the petitioner or his authorised representative shall file duly

attested copies of the photocopies whereof stand filed by him

before the Direcotor (Allotment) of Slum & JJ Wing of the MCD on

29th December, 2009 at 11.00 a.m.

(ii) the petitioner's case shall be considered and he shall be allotted a

plot of 40 sq. meters for commercial user in terms of his

entitlement.

47. This case again manifests the failure of the respondent to proceed

in the matter expeditiously despite the crying urgency of the matter.

Entitlement of a forcible evictee to an allotment based on a scheme for

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resettlement when being operated by the respondent, has to be held to

be indefeasible. The plea of the petitioner and the facts and

circumstances itself would show that the delay and laches would not

normally defeat this right on the contrary. The respondents have not only

a statutory duty and a public law obligation but are required by the

mandate of the Constitution which requires that the fundamental rights of

the citizens under Articles 19(1)(e) and 21 shall be ensured and protected

by the respondent-Slum & JJ Department of the MCD, especially

constituted to work the resettlement schemes which have been

formulated by the Government in discharge of constitutional mandate.

There is no warrant at all for not keeping track of such evictees of forcible

demolition and allottees.

48. Let this matter be brought to the notice of the Additional

Commissioner, Slum & JJ Department of the MCD who shall ensure that

appropriate steps are taken to ensure that records are scrutinized so that

other persons who may be similarly placed are not compelled to knock

the doors of the courts for failure of the respondent to discharge

constitutional mandate.

This writ petition is allowed in the above terms.

Dasti to parties under signatures of the Court Master/Private

Secretary.

GITA MITTAL,J DECEMBER 23, 2009 aa

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