Jamaluddin vs Mohd. Usman (Now Deceased) & Ors.
2010 Latest Caselaw 2242 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+             RSA No. 11/2008 & CM No.700/2008


                                   Date of Decision: April 28, 2010

      JAMALUDDIN                                            ..... Appellant
                              Through:    Mr.Bahar-U-Barqi, Advocate.

                     versus

      MOHD. USMAN (NOW DECEASED & ORS.       ..... Respondents
                    Through:  Ms.Suparna Srivastava,
                              Standing Counsel for MCD.
                              Mr.O.P.Saxena, Advocate.
      %
      CORAM:
      HON'BLE MS. JUSTICE ARUNA SURESH

     (1) Whether reporters of local paper may be
         allowed to see the judgment?
     (2) To be referred to the reporter or not?                Yes
     (3) Whether the judgment should be reported
          in the Digest ?                                      Yes

                              JUDGMENT

ARUNA SURESH, J. (Oral)

RSA No. 11/2008

1. Appellant (plaintiff) filed a suit for declaration and mandatory

injunction seeking a decree for declaration against the respondent that he is

entitled to a plot of 80 square yards in Light Industrial-cum-Commercial

Complex, Shahjada Bagh, Delhi at pre-determined rate.

2. In brief, case of the appellant is that he was residing in

property No.3359/VIII, Turkman Gate, Fatak Telian, Delhi and was using

the property for commercial-cum-residential purposes. He was running the

business of kerosene oil. Said property was demolished in April, 1976 and

appellant was issued demolition slip No.9119 dated 16 th April, 1976. He

was also issued possession slip bearing No.8829 dated 8th July, 1976. He

was allotted an alternative plot of 12 ½ square yards bearing No.41, Block

No.16, Trilokpuri. Since the same was not suitable for his business, he did

not accept it nor took possession of the said plot. Appellant made

representation to the respondent requesting it to allot an alternative plot at

Shahzada Bagh or Mayapuri Industrial Area or built-up shop at Turkman

Gate. However, his request was declined by the respondent on 5 th October,

1992. This resulted into issuance of a notice dated 7 th December, 1992 by

the appellant under sections 477/478 of DMC Act. Respondent department

raised preliminary objection to the maintainability of the suit and also

averred that appellant was allotted plot No.41, Trilokpuri, which he then

transferred to Mohd. Salim against terms of allotment. Representation of

the appellant for allotment of a shop at Turkman Gate was rejected thrice by

the Allotment Committee and therefore, he was not entitled to any

alternative plot as claimed.

3. Appellant lost his suit in the Trial Court. He also lost his

appeal in the First Appellate Court. Hence, this appeal suggesting some

substantial questions of law to be formulated.

4. It is a common case of the parties that in lieu of residential

accommodation he was allotted accommodation in J.J. Colony, Trilokpuri.

Appellant was issued possession slip for commercial plot at Trilokpuri.

However, appellant refused to take possession of the said plot on the plea

that the plot was not suitable for his business and he was not interested in

the said allotment. Allotment given to the appellant was never cancelled.

On these admitted facts and after analyzing other evidence on record, while

disposing of issues No. 2 and 3, in its judgment dated 21 st February, 1998

Trial Court observed:-

".......Perusal of the various documents would show that the plaintiff have been issued possession slip in respect of the plot at Trilok Puri. PW1 has stated that the said slip was handed over at site by the deft to the plaintiff and not in office. In his cross examination he has stated that the plaintiff at any point of time come to their office to complaint that the plot in question was not vacant. I have gone through the various representations made by the plaintiff to the defenant at various points of time, in all the representations the plaintiff has only asked for allotment of shop at Turkman Gate. He has not stated anywhere that he was not allotted plot or that the plot was not vacant. On the contrary the

plaintiff has himself given an affidavit before the deft Ex. Pw3/a and also the affidavit of Md. Saleem is on record. The plaintiff has clearly expressed his desire to handover the plot in question to DDA as he does not benefit by getting the said plot in any manner.

I have also considered the copy of the judgement of our own High Court in the case of Immamuddin vs. UOI reported in 1997 Vol. 45, DLT Page: 510 wherein the High Court has dismissed the petition of the brother of the plaintiff on almost similar grounds. Perusal of the guidelines would show that the case of the plaintiff is not covered in the said guidelines. Even otherwise the allotment committee has found that the plaintiff is not eligible for the allotment of the built up shop at Turkman Gate, Shahjadabagh etc.

Plaintiff has failed to show any breach of legal obligation by the defendant in any manner. This issue is herebydecided against the plaintiff and I hold that the plaintiff is not entitled to any plot of 80 sq. yards area as he has been allotted already plot at Trilokpuri in respect of which he has been issued possession slip by the defendant. Further he is not entitled to any relief of declaration and injunction as asked for in the plaint."

5. It is pertinent that Imamuddin, brother of the appellant had

also filed a writ, which was dismissed. Facts and circumstances of both the

cases are similar; rather identical. Appellant and his brother Imammudin

were residing in the same property, which was demolished and a common

demolition slip was issued to both the brothers. Besides, a possession slip

bearing No.656 dated 29th May, 1976 was also issued to Imammudin. He

did not take possession of the allotted shop at Trilokpuri, with the result,

allotment made in his favour was cancelled. Trial Court took into

consideration Imamuddin's case, reported in 1997, volume 45 DLT Page

510.

6. Appellate Court reassessed the entire evidence of the parties

and found no infirmity and illegality in the judgment and decree of the Trial

Court.

7. Learned counsel for the appellant submitted that appellant

was entitled to relaxed guidelines and was, therefore, entitled for allotment

of an alternative plot measuring 80 square yard. While disposing of

Imamuddin's case, Division Bench of this Court also considered a similar

plea raised by Imamuddin and concluded that petitioner was not covered

under the relaxed guidelines of 1991. The relaxed guidelines were issued

only for those cases where the allotted plot was not available for occupation

by an evictee because of re-allotment thereof by the Department to some

other person.

8. In the present case, plot No. 41, Block No.16, Trilokpuri was

allotted to the appellant, but he did not occupy the same and failed to pay

the license fee.

9. As discussed above, appellant himself had decided not to

accept the allotment of the said plot on the plea that it was too small for his

business.

10. Appellate Court in paras 12 and 14 of its impugned judgment

observed:-

"12. ...........The question of applicability of relaxed guidelines is no more rest integra in view of decision of Hon'ble High Court in Immamuddin (supra). It was held in the said case that the relaxed guidelines were applicable to those cases only where the allotted plot was not available for occupation by an evictee because of re allotment thereof by the department to some other person. Due to failure of the allottee to occupy allotted plot and paying the license fee resulted in cancellation. "In that case the petitioner had admitted that he himself did not accept the allotment of alternative plot no. 27/56 Trilok puri as the same was too small for his business. In the instant case the appellant has admitted that he did not like the allotment of alternative plot no.41 as the same was too small.

14. The real dispute is whether possession of the alternative site slip was issued or actual physical possession was also handed over to the plaintiff. To my mind there is no difference between handing over possession slip and

giving of physical possession. The purpose of handing over slip is to enable the allotee to take the physical possession. If the allotee himself refuses to take the physical possession, the MCD can not be blamed for it. This what has happened in the present case."

11. Under these circumstances, when substantial question of law,

as proposed by the appellant has already been finally determined by this

Court in a writ petition, filed by appellant's brother Imammudin on identical

grounds, I am of the view that no such substantial question of law arises in

this appeal. It is pointed out by counsel for the respondent that appellant

after allotment of the plot has transferred the same to some other person and

the said allotment has not been cancelled till date.

12. Hence, I find no merits in this appeal. The same is

accordingly dismissed.

CM No.700/2008 (for direction)

13. Since the appeal is dismissed, this application has become

infructuous and the same is accordingly dismissed.

(ARUNA SURESH) JUDGE

APRIL 28, 2010 sb