Raj Kumar & Ors. vs Uoi & Ors.
2011 Latest Caselaw 3642 Del

$~7.
*    IN THE HIGH COURT OF DELHI AT NEW DELHI


+       W.P.(C) 16993-17023/2006


        RAJ KUMAR & ORS.                     ..... Petitioners
                     Through Mr. P. Chakraborty, Advocate.


                        Versus


        UOI & ORS.                                    ..... Respondents
                                Through Mr. O.P. Saxena, Advocate for
                                PUSIB, Slum & JJ Wing.

        CORAM:
        HON'BLE THE CHIEF JUSTICE
        HON'BLE MR. JUSTICE SANJIV KHANNA

                   ORDER

% 01.08.2011

By this writ petition, the petitioners have prayed for the

following reliefs:

"i) To declare and strike down Section 200(d) of the DMC Act, 1957 as ultra vires of Section 21, 22 of the DDA Act, 1957 and Rule 6(ii) of the DDA (Disposal of Developed) Nazul Land Rules, 1981 and Article 14 & 21 of the Constitution of India in so far as it prohibits allotment of nazul land and the properties built thereupon at a rate other than the market rate.

ii) To quash the impugned circular dated 6.4.2005 and notices dated 1.6.2006, 5.6.2006 and 23.6.2006 for recovery of

damages and vacation of quarters under the occupation of Shri Hari Singh, Smt. Nandi Devi and Shri Prem Singh Rana and similar notices issued to other employees.

iii) To issue a writ of mandamus to treat the petitioners at par with the allottees of staff quarters of MCD at Nimri Colony, 125 flats in Chandra Sekhar Azad Colony, 25 tenements at Seelampur and 92 tenements allotted at Inderlok to persons who were not affected by the Slum Clearance Scheme at all.

iv) To issue a writ of mandamus directing the respondents to implement the Low Income Group Housing Scheme of 1955 and grant leasehold/ownership rights to the petitioners in respect of the tenements under their occupation at Madipur, the particulars of which are given in Annexure-P-1, at pre- determined rate.

v) Any other writ, order or direction that this Hon'ble Court may deem fit and proper in the above facts and circumstances of the case, may be issued."

2. We have heared Mr. P. Chakraborty, learned counsel for

the petitioners and Mr. O.P. Saxena, learned counsel for the

respondent-Slum & JJ Department, MCD (presently substituted

by the Delhi Urban Shelter Improvement Board). The

respondent constructed about 5000 houses under the scheme

called "slum clearance scheme". Under the said scheme, these

houses were to be allotted to the slum dwellers who faced

eviction and clearance.

3. The petitioners, who are employees of the MCD, had

approached their employer for occupation of the houses that had

not been allotted to the slum dwellers. The MCD allotted the

said houses for occupation by their employees. One such

allotment letter, which is brought on record at page 121 of the

paper book, reads as follows:

"1. The allottee shall take over possession of above quarter/house within 15 days from the date of issue of this letter from concerned Executive Engineer(s).

2. If the allottee failed to take over possession of quarter by the stipulated period, then the allotment made in their names shall be cancelled. He will be disentitled for department accommodation for one year and the other eligible employees shall be given allotment of said quarter.

3. The Additional Commissioner (S&JJ) shall be the final authority to resolve any dispute in connection with allotment case. If it is found that the allotment has been obtained by mis-representation or concealment of facts, then the allotment shall be cancelled and disciplinary proceeding shall be initiated against him/her.

4. The Licence Fee shall be applicable from the date of taken over the possession or 15 days from the date of issue of this letter whichever is earlier. The licence fee shall be charged from the allottee under FR-

5. The allottee after taking over the possession of quarter shall inform the Director (Admn)/DDO's concerned accordingly.

6. The allottee shall not use any portion of quarter allotted to him/her for any purpose other than residence.

7. The allottee shall not make any additions or alternation in the allotted staff quarter without taking the prior permission of the Competent Authority.

8. The allottee shall not sub-let any portion of quarter.

9. The allottee shall ensure that he/she produce NOC's from the D.V.B. as well as D.J.B. and also further ensure that he/she furnish the disconnection certificate/surrender certificate of the Electricity/Water Meter to the concerned agencies at the time of vacation of the staff quarter so that the subsequently no bills are charged against the subsequent allottee or the department.

10. In case, the allottee fails to abide by the above mentioned terms & conditions, disciplinary proceeding shall be initiated against him/her in addition to it, the allotment shall be cancelled forthwith. The action shall be taken as per rules in this regard."

(emphasis supplied)

4. On a perusal of the same, it is quite clear that the

allotment was not a sale or transfer but allotment made was of

department accommodation and as a part/term of employment.

Right and title of the house was not transferred to the employee

but the employee was granted right to use the same during

his/her employment or till the allotment was cancelled. The

allotment was not given to them as a slum dweller. No payment

was made or received towards costs. By no stretch of

imagination, the employee allottee can be treated as a tenement

holder under the slum clearance scheme. The employees

were/are required to pay licence fee under FR-45. In paragraph

9 of the aforesaid allotment order it has been stated that NOC is

required to be produced by the allottee with regard to

electricity/water meters at the time of vacation of the staff

quarter so that no arrears are charged from the subsequent

allottee or the department.

5. Thus, the submission of Mr. Chakraborty that the allotment

was in favour of the employees as slum dwellers is sans

substance.

6. Presently, we shall proceed with regard to the validity of

the circular. The said circular stipulates as follows:

" Addl. Commissioner (S&JJ) vide his order dated 30.03.2005 has approved the proposal to divert the following Staff

Quarters in various Slum Re-housing Colonies, which were allotted to staff members of the department and lying vacant at present, at the disposal of Allotment Branch for its further allotment to the evictees from Katras/Dangerous properties under Slum Clearance Scheme:-

S.No. Name of Slum Quarter/Flat No. Re-housing Colony

1. Madipur 2-A, 11-B, 14-A, 17-B, 20-A, 21A, 22-A & 22-B (8 Nos.)

2. Raghubir Nagar 47, 64, and 43 (3 Nos.)

3. Kalkaji C-132, D-187 and C-

4. Jahangirpuri A-41/X, A-43/X, A-

44/X,A-49/X, A-46/Y, A-

47/Z, F-16/X, A-19/X, and F-38/X (9 Nos.)

5. Sunlight Colony I-C, 2-C and 4-C (3 Nos.)

6. Kabool Nagar, GT 266 (1 No.) Road Shahdara"

7. Once we have held that the petitioners were not entitled to

title or ownership rights in the quarters, not being persons

evicted under the "slum clearance scheme", the challenge to the

circular has to fail. Hence, there is no justification to enter into

and examine the validity of the same. The petitioners cannot

challenge how and in what manner the respondent should use

their property.

8. Presently, we shall proceed to examine the challenge to

the constitutional validity of Section 200(d) of Delhi Municipal

Corporation Act, 1957. The said provision reads as follows:

"200. Disposal of property.- With respect to the disposal of property belonging to the Corporation, the following provisions shall have effect, namely:-

(d) the consideration for which any immovable property may be sold, leased or otherwise transferred shall not be less than the value at which such immovable property could be sold, leased or otherwise transferred in normal and fair competition;"

9. Learned counsel for the petitioner would submit it runs

counter to Sections 21 and 22 of the DDA Act, 1957 and Rule

6(2) of the DDA (Dispoal of Developed) Nazul Rules, 1981 and

Articles 14 and 21 of the Constitution of India. It is worth noting

that when the petitioners have no right under the DMC Act or

any of the provisions of the DDA Act, the advertence to the

challenge is absolutely academic. It is trite law that the Court is

not required to advert to such academic issues. Thus, we

refrain from doing so.

10. Here it may be appropriate to reproduce the finding of the

Supreme Court in B.S. Khurana versus Municipal

Corporation of Delhi (2000) 7 SCC 679, which reads:

"16. The scheme of the aforesaid sections makes it abundantly clear that the entire executive power for the purpose of carrying out the provisions of the Municipal Corporation Act vests in the Commissioner. His functions and duties are statutorily prescribed. His appointment is also to be made by the Central Government by notification in the Official Gazette. Similarly, the functions of the Standing Committee and other committees are also prescribed. In the light of the aforesaid statutory provisions, we have to consider the scheme of Section 200 which empowers the Commissioner to dispose of the moveable property or grant lease of any immovable property or to sell the same subject to the conditions provided thereunder. On the condition of obtaining sanction of the Corporation, the power to transfer immovable property, the value of which exceeds fifty thousand rupees vests in the Commissioner. Result is -- the Commissioner can transfer such immovable property only after obtaining sanction of the Corporation. Obtaining of sanction by the Commissioner is mandatory. The effect of the non-observance of the statutory prescription would vitiate the transfer. This would also mean that the power to dispose of the property would vest in the Commissioner and not in the Corporation. No specific power is conferred upon the Corporation for such transfer. The scheme envisages checks and balances for disposal of immovable property on the power of the Commissioner. In the light of the aforesaid interpretation of Section 200, it is not necessary for us to deal with other contentions raised and dealt with by the High Court. In the facts and circumstances of the case, at no point of time, had the Municipal

Commissioner decided or agreed to transfer the municipal quarters in favour of its employees/allottees. There is no legal right to claim ownership on the basis of the resolutions passed by the Corporation as the said resolutions are without any power or authority. Hence, there is no substance in these petitions."

11. As far as the other reliefs relating to eviction and recovery

of damages are concerned, we are not entering into the same as

it may be pre-judging the matter as we have not been informed

whether the petitioners have been evicted or any appropriate

stand has been taken. If there is any cause of action, it is open

to the petitioners to approach appropriate forum, as advised in

law.

12. The writ petitions are accordingly dismissed without any

order as to costs.

CHIEF JUSTICE

SANJIV KHANNA, J.

AUGUST 01, 2011 VKR/NA