Delhi High Court

Rattan Lal Prajapati vs Mcd & Ors. on 28 April, 2010

Author: Aruna Suresh

* IN THE HIGH COURT OF DELHI AT NEW DELHI


+             RSA No.22/2008 & CM No.1214/2008

                                          Date of Decision: April 28, 2010

       RATTAN LAL PRAJAPATI                                ..... Appellant
                     Through:             Mr.P.K.Mittal, Advocate.

                     Versus

       MCD & ORS.                                         ..... Respondents
                              Through:    None.

       %
       CORAM:
       HON'BLE MS. JUSTICE ARUNA SURESH

     (3) 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)

1. Appellant is earning his livelihood by selling pan, bidi and

cigarettes as a squatter on the land of Municipal Corporation of Delhi (for

short „MCD‟) in front of United Bank of India, Gandhi Nagar since 1980.

He applied with the respondent for permission of squatting vide receipt

No.72967 dated 23rd July, 1992. Despite deposit of Rs.3,000/-, respondent

failed to allot the said land to the appellant as a squatter. Hence, he filed a

suit for permanent injunction against the respondent.

2. Respondent in the written statement raised a defence that Teh

Bazari of the appellant was cancelled and therefore, he became an

encroacher of the municipal public land. Respondent also referred to

directives of the Supreme Court dated 1st May, 1997 by virtue of which

MCD was directed to investigate all the Teh Bazari matters and thereafter

scrutinize all the documents in this regard and allot sites to eligible persons.

However, appellant despite service of registered letter upon him, failed to

submit his documents in respect of continuing Teh Bazari payment as

required and therefore, his Teh Bazari was cancelled.

3. In view of judgment of the Supreme Court in 'Gainda Ram &

Ors. Vs. MCD, Town Hall & Ors.', reported as JT 1993 (3) SC 396,

respondent disputed maintainability of the suit in the Civil Court.

4. Trial Court in view of Gainda Ram's case (supra) dismissed

the suit as not maintainable and declined to give relief of injunction as

claimed by him. Thereafter appellant filed a Regular Civil Appeal bearing

RCA No. 52/2004, which was also dismissed by the Appellate Court vide

its impugned judgment and decree dated 25 th January, 2007.

5. While dismissing the appeal, Appellate Court observed:-

"........but the fact that the Committee of Justice R.C.Chopra was looking in to the Teh Bazari cases, the plaintiff should have also

approached the said Committee for the relief asked for. Since he did not approach the said Committee, which was exclusively dealing with Teh Bazari cases, he cannot agitate before the Civil Court the remedy which he did not avail. Therefore, the view taken by the Ld. trial court, in view of the judgment of Hon‟ble Supreme Court in Gainda Ram‟s case that the suit of the appellant was not maintainable, certainly the appellant should have approached the said Committee and findings of the trial court on this ground cannot be said to be erroneous. The appeal of the appellant is hereby dismissed."

6. Counsel for the appellant has submitted that both the courts

below misinterpreted Gainda Ram's case (supra) to the facts and

circumstances of this case to conclude that the suit was not maintainable in

the Civil Court and that appellant should have approached the Committee of

Shri R.C.Chopra to look into his Teh Bazari rights. Therefore, he has

submitted that substantial question of law is involved in this case.

7. I find no force in the submission of counsel for the appellant.

In Gainda Ram's case (supra), Supreme Court, while referring to 'Saudan

Singh Vs. NDMC & Ors., [1992] 2 SCR 243, reproduced the guidelines as

laid down in the said case in the following manner:-

"(1) Persons who have been found squatting between 1970 and 1982 and whose names are contained in the survey report prepared after the survey conducted in 1982 will receive first priority for grant of tehbazari permission

subject to the scrutiny of their claims;

(2) Insofar as casual tehbazari on weekly holidays, festivals/melas, etc., is concerned, as well as at the 67 weekly bazars held, persons availing of the said benefit will continue to be granted the casual or weekly tehbazari;

(3) Squatters who have started squatting/hawking in 1983 onwards and who were not found on the date of survey would also be considered for grant of open tehbazari of 6‟*4‟ subject to the production of proof of continuous squatting and proof of residence and nationality. Such squatters/hawkers would be granted open tehbazari subject to availability of space provided they have cleared the dues of the MCD; and

(4) Persons who do not fall within the aforesaid three categories would be permitted to apply for hawking licneces under Section 420 of the Delhi Municpal Corporation Act, 1957 and their applications would be considered on merit for permission to hawk-not squat-by moving in specified areas with their goods on their heads or on cycles. They will be entitled to hawk with their goods anywhere in the zone in respect of which they have not been granted a licence. However, such permission will be subject to any restrictions that may be imposed by the residential associations or different colonies."

8. After considering the submissions of respective parties,

Supreme Court concluded:-

"5. .....With these observations, all the petitions/appeals/SLPs/suit, etc., pending in this Court/the High Court of Delhi and Courts

subordinate to it shall stand terminated by this order forthwith. In other words no civil litigation commenced by or on behalf of the squatters/hawkers pending in the Courts of Delhi shall survive. No further litigation by or on behalf of any squatter/hawked will be entertained but if the MCD violates any part of this order the concerned party governed by this order will be entitled to file an LA. for directions. The interim stay orders granted in those cases shall also stand vacated. The MCD will, however, maintain the status quo till the verification is completed and only in regard to those hawkers/squatters whose claims are negatived, will it be open to the MCD to take action for their eviction ten days after the claim is rejected. The MCD will also ensure that future encroachments do not take place defeating the rights of existing squatters/hawkers governed under the scheme. It will also protect the interest of the shop- keepers as they too have a similar right under Article 21 of the Constitution. No order as to costs in all cases."

9. Thus, it is clear that appellant could not invoke jurisdiction of

the Civil Court to seek relief which he was required to seek from Shri

R.C.Chopra‟s Committee.

10. Counsel for the appellant has referred to 'Gainda Ram Vs.

M.C.D.' 1997 VI AD S.C.130 to emphasize that the civil suit filed by the

appellant was maintainable. It is noted that it was an interim application

filed in Gainda Ram's case (supra), which was considered and decided by

the Supreme Court on 1 st May, 1997. While disposing of the IA, some

suggestions made by Shri R.C. Chopra‟s Committee were considered and

accepted. Supreme Court went further to lay down further guidelines for

examination of claims of some of the applicants, who were held in eligible

for allotment of Teh Bazari.