Smt.Bimla Rani vs Delhi Development Authority
2010 Latest Caselaw 3946 Del

*IN THE HIGH COURT OF DELHI AT NEW DELHI

%                         Date of Judgment : 26th August, 2010

+                  RSA No.72/2008


SMT.BIMLA RANI                                 ...........Appellant
            Through:           Mr.P.Chakroborty, Advocate.

            Versus
DELHI DEVELOPMENT AUTHORITY
                                               ..........Respondent

Through: Mr.Rakesh Mittal, Advocate.

CORAM:

HON'BLE MS. JUSTICE INDERMEET KAUR

1. Whether the Reporters of local papers 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

INDERMEET KAUR, J.(Oral)

CM No.12198/2008( for permission to file documents)

Not pressed. Dismissed.

CM No.4301/2008 (for condonation of delay)

There is no substantial opposition to this application. The

delay in filing the appeal is condoned. Application is disposed of.

RSA No.72/2008 & CM No.4302/2008 ( for stay)

1. This second appeal has impugned the judgment and decree

dated 19.9.2007 which had endorsed the finding of the Trial Judge

dated 13.8.2002 whereby the suit of the plaintiff/appellant had

been dismissed.

2. Briefly stated the facts of the case are as follows:

(i) The plaintiff Bimla Rani represented through her

LRs was a widow and had a large family. Her late

husband Roshan Lal was in occupation of 386 sq.

yards of land opposite Idgah in Jhandewalan Estate,

Delhi which was under the control and management of

the Delhi Development Authority (hereinafter referred

to as the „DDA‟). The plaintiff had occupied this land

w.e.f. 1.1.1962; he paid damages till 1968 i.e. till he

was removed. No alternate allotment was given to the

plaintiff as it was stated that he was not assessed to

damages prior to 1.1.1961; as such he was not eligible

under the policy for alternate allotment. Plaintiff has

no source of livelihood; she is dependent upon her son;

she is a widow.

(ii) Vide resolution dated 11.10.1977 DDA had allotted

land to other evictees who were not assessed to

damages but were doing bonafide business at Motia

Khan.

(iii) In the year 1985 DDA constituted a committee for

allotment of alternate land to the left over and rejected

cases of Motia Khan area this came to the knowledge

of the plaintiff only in July 1986.

(iv) Vide resolution dated 21.8.1986 the DDA resolved

not to accept any fresh application.

(v) On 9.1.1989 a representation was made by the

plaintiff to the DDA but of no avail.

(vi) Present suit was filed seeking an injunction

against the defendant to allot an alternative plot of

350 sq. yards at Mayapuri Industrial Area.

(vii) Written statement had contested the suit. It is

stated that mandatory notice under Section 53B of the

Delhi Development Act (hereinafter referred to as the

DDA Act) had not been given. Case of the present

plaintiff was not pending with the department.

Plaintiff was not in occupation of the land at the time

of the clearance operation. Plaintiff has no locus

standi to file the present suit. M/s Roshan Lal and

sons were in unauthorized occupation of 133 sq. yards

of land and were assessed to damages w.e.f. 1.4.1969

to 31.3.1974. Eligible evictees of Motia Khan had

already been given alternate sites.

(viii). In view of the resolution no.70, the DDA had

decided not to reopen past cases of the evictees of

Motia Khan of 1975-76.

(ix)Trial Judge had framed four issues; which inter alia

read as follows:

"1.Whether action of defendant is illegal, untravires and without jurisdiction?

2. Whether the suit is bad for want of notice u/s 53-B of DD Act? OPD

3. Whether the suit is barred by limitation? OPD

4. Whether the plaintiff is entitled for the relief claimed for?"

(x) The suit was held bad for want of mandatory notice

under Section 53 B of the DDA Act. Suit was however

held to be within limitation. On issues no.1 and 4 the

Trial Court examined the versions of PW-1 and PW-2

as also the two witnesses examined on behalf of

defendant i.e. DW-1 and DW-2. DW-1 had deposed

that there was no assessment made in the name of the

plaintiff and she was not in possession of the disputed

land; the assessments of damages were made in the

name of Roshan Lal and Chunni Lal up to 25.12.1967

and none after that. The case of the plaintiff was not

covered by resolution no.70. Further this resolution

no.70 dated 21.8.1986 holding that all old cases stand

closed and will not be reopened has been upheld by

High Court in CWP No.452/1987 titled as M/s Om

Prakash Parmod Kumar Vs. UOI & Ors. The same has

since attained a finality. Action of the defendant

rejecting the case of the plaintiff is legal. Suit of the

plaintiff was dismissed.

(xi) The first Appellate Court vide judgment dated

19.9.2007 endorsed the finding of the Trial Judge. It

was held that the plaintiff had no cause of action

against the defendant. The policy of allotment of

alternate plots to evictees of Motia Khan stood closed

by resolution no.70 dated 21.8.1986 which was upheld

by the High Court in CWP 452/1987 on 19.2.1987.

Neither the plaintiff Bimla Rani nor her husband made

any representation for an alternate plot in terms of the

resolution dated 11.10.1977. Notice under Section 53

B of the DD Act had not been served. Suit was even

otherwise held to be barred by limitation; suit having

been instituted on 27.3.1989 challenging the

resolution dated 11.10.1977.

3. This is a second appeal. Appeal has yet not been admitted.

Substantial question of law has been formulated on page 34 of the

paper book which inter alia reads as follows:

" The important question of law in the present RSA is as under:

Whether the scheme for shifting of non-conforming trade and industry framed under Master Plan for Delhi is a continuous process and the scheme having been prepared in the year 1964-65, all the affected persons are entitled to benefit under scheme irrespective form the date when the scheme came into force and even if the policy is struck down under Article 14. The scheme is revived as soon as it is modified in the light of the order of the court."

4. The contention of the learned counsel for the appellant

is that he was an evictee from the Motia Khan premises of

the year 1968 yet the subsequent policy of the DDA allowing

alternate allotment to evictees of Motia Khan would have a

retrospective effect entitling the plaintiff also to an alternate

plot.

5. This argument is noted only to be rejected. Wherefrom

and under which statutory provision, guideline or rule of law,

this argument has been raised is not answered. Admittedly,

even as per the case of the appellant the plaintiff had been

shifted out of the Motia Khan area in the year 1968. The

policy as per the DDA for alternate allotment of evictees of

Motia Khan had been formulated on 11.10.1977 where in

terms of this aforenoted resolution evictees who were doing

bonafide business at Motia Khan were allotted alternate land.

Admittedly, the plaintiff was not in occupation of the suit

land at that time; she having been evicted as way back as in

1968. On 21.8.1986 the DDA had passed a resolution that all

past cases including cases of Motia Khan will not be

reopened. This has been upheld by Division Bench of this

Court in the aforenoted writ petition. The case of the

plaintiff was not covered under any of the guidelines laid

down by the department under which she could make any

legal or valid claim for an alternate allotment. In fact the

first representation made by the plaintiff was on 9.1.1989.

By no stretch of imagination can it be said that a

guideline/policy which had seen the light of the day only on

11.10.1977 would apply retrospectively to an evictee for the

year 1968. Learned counsel for the appellant has also not

been able to point out any such rule or law in his favour.

6. The judgment relied upon by the learned counsel for

the appellant passed in CWP No.360/1981 Om Prakash Gupta

& Ors. Vs. Delhi Development Authority & Ors. also shows

that the actual removal of persons in the Motia Khan area

started in the year 1975. This judgment is of no help to the

appellant.

7. No question of law much less any substantial question

of law has arisen. Appeal as also the stay application is

dismissed in limine.

INDERMEET KAUR, J.

AUGUST 26, 2010 nandan