Brijesh Kumar Gupta vs Commissioner, Municipal ...
2010 Latest Caselaw 877 Del

W.P. (C) No. 198/2006                     1




*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  WRIT PETITION (CIVIL) NO. 198 OF 2006


                                  Reserved on : 3rd February, 2010.
%                               Date of Decision : 16th February, 2010.


BRIJESH KUMAR GUPTA                                     ..... Petitioner.
             Through             Mr. S.C. Rana, Advocate.

                                 VERSUS
THE COMMISIONER,
MUNICIPAL CORPORATION
OF DELHI & ORS.                                ...Respondents.

Through Mr. O.P. Saxena, Advocate for respondent Nos. 2 and 4.

Ms. Sangeeta Chandra, Advocate for DDA.

Mr. N. Nanawati, Advocate for respondent No. 3.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA

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 ?

SANJIV KHANNA, J.:

1. The petitioner claims alternative allotment of a kiosk/stall on the ground of parity and alleges discrimination. The petitioner claims that he was carrying on business of selling eatables in a rehri/khokha in Dhaula Kuan area prior to 1980. It is stated that the petitioner was removed and asked to shift first in the year 1982 and then again in 1986, when the President of erstwhile USSR visited India. He relies upon the allotments made to other persons who, it is stated, were similarly situated and in this

connection reference is made to a list prepared by Vivekanand Welfare Association enclosed with the letter dated 2nd December, 1998. Great emphasis is placed upon letter dated 17th March, 1994 written by Joint Director, DDA to the Executive Officer, Cantonment Board, Delhi and the response of the Cantonment Board dated 8th April, 1994 in which it has been stated that Mr. Brijesh Kumar Gupta was carrying his trade on rehri since 1980 and his name was included in the list of hawkers, who were removed for security reasons in 1986 but unfortunately allotment had not been made to him.

2. The respondent-Delhi Cantonment Board has contested the petition and has produced before this Court, the original file maintained by them.

3. In 1981, a list of traders operating from Ring Road near Dhaula Kuan area roundabout was prepared and it was decided that they should be accommodated and allotted teh bazari sites towards Atma Ram Sanatan Dharam College. This list of 26 traders has been filed by the petitioner himself. The list states the approximate dates since when these persons were operating from the area near Dhaula Kuan. The petitioner's name does not figure in the said list.

4. Learned counsel for the petitioner has placed reliance upon another list (Annexure P-1) enclosed with the letter dated 2nd December, 1998 written to Municipal Corporation, South Delhi, Green Park, New Delhi. This letter is not written by the petitioner but by one Mr. Brijesh Chandra Pal. In this list at serial No. 23, name of Brijesh is mentioned. The original file produced by the respondent-Delhi Cantonment Board, however, shows that the said Mr. Brijesh was the son of Mr. Chander Guyala, who was carrying on business of pan/cigarette. As per cause title, the petitioner is Mr. Brijesh Kumar Gupta son of Mr. Chander Pal. It is not the case of the petitioner that he was at any time carrying on pan or

cigarette business. It is stated in the petition that the petitioner has been selling Chole- Bhature on khokha/ rehri prior to 1980. Secondly, the so- called list of Vivekanand Welfare Association enclosed with the letter dated 2nd December, 1998 is not an official list. It does not give the date on which it was prepared. Hardly any sanctity can be attached to the said list. In fact, what is placed on record is the photocopy of the said list, which appears to have been attested as a true photocopy by a Superintendent in Government of NCT of Delhi. It cannot be treated as a true and accepted list by the Government of NCT of Delhi or the Delhi Cantonment Board.

5. Letter dated 17th March, 1994 written by Joint Director, DDA reads

"To, The Cantonment Executive Officer, Office of the Cantonment Board, Delhi.

Sub: Alternative allotment of site in lieu of demolished khoka/Rehri.

In 1986 some hawkers were removed from VIP route Dhaula Kuan site by your office due to security reason. One Shri Brijesh Kumar Gupta r/o 4/30 Trilokpuri, Delhi approached this office and alleged that his khokha/Rehri was also removed during this operation but no alternative site has been allotted alterntive khoka/shop.

Kindly intimate this office whether:

(i) The name of Shri Brijesh Kumar Gupta is in the eligibility list of alternative site or not?

(ii) Has cantonment Board allotted the alternative khoka/shop to other hawkers or

any other Govt. agency allotted.) Copy of the representation attached.)

Kindly furnish the report at the earliest.

Encl: As above.

(H.L. Chawla) Jt. Dir. (LPB) SWZ.

Shri Brijesh Kumar Gupta, 4/30, Trilokpuri, Delhi for information.

Sd/-

(H.L. Chawla) Jt. Dir. (LPB) SWZ"

6. Response thereto by letter dated 8th April,1994 by the Cantonment Executive Officer, Cantonment Board to the Joint Director reads:-

"To Shri H.L. Chawla Jt. Director (LPG) SWZ, Delhi Development Authority, Viakas Sadan, I.N.A.

New Delhi-110023

Sub: Alterntive Allotment of site in lieu of demolished khoka/Rehri Dear Sir, Reference your letter No.SW914)/94/LPB/39 dated 17.3.94.

Shri Brijesh Kumar Gupta was carrying his trade on rehri at Dhaula Kuan since 1980 as per office record. All the rehirwala's were removed from the VIP Route (Dhaula Kuan Round About) due to security reasoning the year 1986. Thereafter 05 (five) stalls were constructed by the Cantonment Board and allotted the following on a monthly rented @ Rs.720/- per annum in the shape of Licence Fee:-

5. Shri Om Pal Singh Sl. No. 5 was allotted to ex-serviceman, Shri Om Pal Singh.

The name of Shri Brijesh Kumar Gupta is also in the list but unfortunately the allotment was not made to him. It is also confirmed that no allotment of site/kiosks has been made to Shri Brijesh Kumar Gupta till date from this office.

Yours faithfully,

Sd/-

Cantonment Executive Officer Delhi Cantonment."

7. The stand taken by the respondent-Cantonment Board is that the letter dated 8th April, 1994 was written under mistake as it was issued on the basis of list of hawkers, which was not prepared by the Cantonment Board. It is stated that the list of hawkers prepared by the Cantonment Board consists of 26 hawkers and is dated 25 th March, 1981 in which the petitioner's name does not appear. As stated above, the said list has been produced on record by the petitioner himself and the petitioner's name does not figure in the said list. To verify and examine the said contention of the respondent, the original file of the Cantonment Board has been scrutinsed and examined. The said file reveals that on 13th November, 1986 the petitioner had approached, District President of a political party, who had written a letter of request to the Cantonment Executive Officer. The petitioner had also written some letters to the Prime Minister, the Lieutenant Governor and others. Another letter dated 13 th November, 1986 was also addressed to the Lieutenant Governor of Delhi. The

original letter is on record and was marked to Executive Officer, Delhi Cantonment Board. There is a detailed hand written note dated 6th January, 1987 in which it is mentioned that communications had been received forwarding application of the petitioner from the District President of a political party, Chief Secretary, Raj Niwas, Lieutenant Governor and a Lok Sabha M.P. It was directed that these authorities may be informed that during Asian Games 1982 rehriwalas on VIP route were removed and were rehabilitated in 16 kiosks constructed by Municipal Corporation of Delhi and 4 kiosks constructed by Delhi Cantonment Board in the areas falling in their respective jurisdiction. Subsequently, on 18th December, 1986, a joint application was received from 52 persons including the petitioner which was recommended and sponsored by the Vice-Chairman and a member of the Cantonment Board for "allotment" of land to rehriwalas at Dhaula Kuan and the matter was placed before the Board meeting held on 26th December, 1986 to allow these rehriwalas to do their business within the jurisdiction. The note further records that a letter was written to the MCD authorities for their approval etc. This note makes it clear that in 1986 the petitioner was held entitled to teh bazari right as a rehriwala to do business at Dhaula Kuan. Allotment of kiosk/stall was never approved of or accepted. The note mentioned above was issued to enable these rehriwalas to carry on business at a new location after their removal in 1986 so that they were not deprived of their source of livelihood.

8. There is no correspondence or letter thereafter by the petitioner between 1986 till 12th May, 1992, when he made a request that he should be given a kiosk/stall. Subsequently, a letter dated 17th March, 1994 was written by Joint Director, DDA to the Cantonment Executive Officer, Cantonment Board, Delhi. The said letter has been quoted above. This

letter enquires as to whether the petitioner's name was included in the eligibility list of alternative site or not or whether Cantonment Board or any other Government agency had allotted kiosk/shop to other hawkers. In response to this letter, the Cantonment Board informed the Joint Director, DDA that four persons were allotted kiosks near the Dhaula Kuan roundabout and one kiosk was allotted to an ex-serviceman. However, in the last paragraph of the said letter it was mentioned that the petitioner's name had been included in the list but no allotment had been made to him. As stated above, it is the contention of the respondent- Cantonment Board that this letter was written under a mistake and the official and accepted list available was prepared and enclosed with the letter dated 26th March, 1981 consisting of 26 people in which the petitioner's name was not there. No evidence or material has been produced on record to show that the petitioner has been carrying on business of selling Chole-Bhature since 1981. However, there is evidence on record that the petitioner has been selling Chole-Bhature at least since 1986. As per the list prepared in 1986 there were about 52 persons carrying on business near Dhaula Kuan. It is not the assertion or contention of the petitioner that these 52 persons have been allotted kiosks/stalls. The contention of the petitioner is that the persons who were carrying on business in 1982 were allotted kiosks/stalls as stated above. It is clear from the records that the petitioner's name is not included in the list prepared in 1981 by the Delhi Cantonment Board. The petitioner, therefore, cannot claim parity or equivalence with the persons mentioned in the 1981 list.

9. There is one more reason why the petitioner's contention relying upon 1981 list and allotments made in 1986 must fail. The petitioner filed the present writ petition in January, 2006. In the present case, the

petitioner wants verification and examination of list of hawkers, who were carrying on business in the year 1980-82. He also wants examination of kiosks/stalls allotted to the said hawkers in 1986. The said verification after this delay and time gap of nearly 25 years is full of difficulties and problems. The petitioner is, therefore, guilty of delay and laches in approaching the Court though due regard must be given to the fact that he is merely a hawker and approaching Court is expensive and is a matter of last resort. In Union of India and Others versus Har Dayal, (2010) 1 SCC 394, the Supreme Court has observed:-

"10. The learned Single Judge and the Division Bench have totally ignored the enormous delay of more than 30 years on the part of the respondent in approaching the court. This Court has repeatedly held that merely giving representation will neither extend the limitation nor wipe out the delay and laches. (See S.S. Rathore v. State of M.P.) Further, the respondent and his brothers were categorically informed in September 1989 that due to non-availability of agricultural land, they were entitled only to cash equivalent of compensation as per the Rules and therefore, Rs 383.50 each being their share of compensation was to their credit and they could draw the same. The respondent could have challenged that order on the ground that he was entitled to land and not cash. But he did not do so.

11. The refusal to allot the balance land whether right or wrong, attained finality. Obviously, it could not be reopened by filing a writ petitioner in 1996, more than 45 years after the verification of the claim, and 7 years after categorical refusal to allot land. The writ petitions ought to have been rejected on the ground of delay and laches. There was no question of rewarding the

delay on the part of the respondent, by directing payment of current market value of 1996 for the undelivered land, contrary to the Rules."

10. Some other teh bazari right holders had filed W.P. (C) No. 7666/2002 before this Court. The said writ petition was disposed of vide order dated 28th January, 2004. It was noticed that the petitioners therein were carrying on hawking business having tea stalls etc., since 1986 and they were removed from the site in November, 1986 and shifted to another location nearby Dhaula Kuan. These petitioners wanted allotment of kiosks/stalls. The writ petition was disposed of observing that the petitioners had not been able to demonstrate any enforceable statutory right for retaining the operational sites in question and it was directed that the Cantonment Board may consider applications moved by the petitioners for alternative allotment in accordance with the scheme or policy, if any. The petitioner's case is identical and meets the same fate. The petitioner has not claimed that there is any present policy for alternative accommodation in kiosk or stall or the petitioner has been directed or asked to move to another location. No such averment or prayer to protect dislocation from the present location has been made.

8. The petitioner has made allegation that some persons have managed to secure double allotment. Reference in this regard is made to letter dated 29th January, 1996 written by Municipal Corporation making reference to allotments made in the name of Mr. Madan Lal, Mr. Kishan Lal and Ms. Shanti Devi. My attention was also drawn to the letter dated 8th April, 1994 written by Cantonment Executive Officer, which also refers to the same three names. The two respondents, viz., Cantonment Board and the Municipal Corporation of Delhi will examine whether the

said persons were given dual allotment and suitable action as per law will be taken. It is noted that those persons are not parties to the present writ petition and, therefore, it will not be appropriate for this Court to go into the said question and pass any specific directions. The findings of the Municipal Corporation of Delhi and Cantonment Board will be communicated to the petitioner through a letter.

9. The petitioner admittedly has now been operating a rehri since 1986, i.e., for last more than 23 years. His desire and aspiration to have a kiosk or a stall is understandable. DDA/Cantonment Board/other local authorities have to take notice and examine the desire of the petitioner but the petitioner has to be treated at par and along with other similar cases. However, this is an administrative and a policy matter. No prayer or arguments or data and details are available to examine the question whether any directions should be issued to the respondents for formulating a scheme or policy.

The writ petition is accordingly disposed of. No order as to costs.

(SANJIV KHANNA) JUDGE FEBRUARY 16, 2010.

VKR