Delhi High Court
Kishan Lal vs M.C.D. on 3 February, 2011
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 3rd February, 2011
+ W.P.(C) 1591/2008
KISHAN LAL ..... Petitioner
Through: Mr. V.K. Sawhney & Mr. P.K.
Aggarwal, Advocates
Versus
M.C.D. ..... Respondent
Through: Mr. Ajay Arora & Mr. Kapil Dutta,
Advocates.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? No
2. To be referred to the reporter or not? No
3. Whether the judgment should be reported No
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The petition impugns the communication dated 3 rd September, 2007
of the respondent MCD to the petitioner cancelling the allotment earlier
made to the petitioner of a plot of land in Ghogha Dairy Colony Project.
The cancellation letter itself records that this Court vide order dated 31 st
May, 2007 in W.P.(C) No.3791/2000 titled Common Cause Society Vs.
Union of India and pursuant to the proceedings in which writ petition, the
proposal for the Ghogha Dairy Colony Project had come up, had directed
that the sole criteria for allotment of plots in the said project should be the
running of dairy business by the applicants and if any of the applicants to
whom allotment had been made were found to be not carrying on the said
business, their allotments were directed to be cancelled. Pursuant to the
said direction, according to the respondent MCD, a Committee comprising
of Veterinary Officer of the respondent MCD, Veterinary Officer of the
Government of NCT of Delhi and the SHO of the concerned Police Station
was constituted and which Committee did not find the petitioner to be
running the dairy business. Accordingly, the allotment in favour of the
petitioner was cancelled.
2. It is the case of the petitioner that no inspection was carried out; that
he had in fact been carrying on dairy business and in support whereof the
copies of the general receipts dated 24th August, 2004, 8th December, 2004,
26th July, 2005 & 8th May, 2006 of the respondent MCD of payment under
Sections 417/323 of Delhi Municipal Corporation Act, 1957 were filed
along with the petition.
3. Notice of the petition was issued and the respondent MCD directed
to produce the original file. A counter affidavit has been filed by the
respondent MCD stating that inspection as aforesaid not only by the
officials of the respondent MCD but also by the officials of the Govt. of
NCT of Delhi and the Police was carried out and allotment in favour of
those not found carrying on dairy business were cancelled. It is also
pleaded that out of 1373 applicants / allottees, 838 had not been found to
be carrying on dairy business. The counsel for the respondent MCD has
today argued that the respondent MCD having acted in accordance with the
directions in the Public Interest Litigation aforesaid and having widely
advertised by public notices in the newspapers, the said order, the remedy
of the petitioner is not by way of this petition but was by way of moving an
application in the aforesaid Public Interest Litigation only. It is contended
that the respondent MCD had duly reported to the Division Bench of this
Court in the Public Interest Litigation aforesaid of the cancellations and all
of which was approved by the Division Bench. It is reiterated that the
petitioner was not found running a dairy business.
4. No rejoinder was filed by the petitioner to the aforesaid counter
affidavit.
5. The matter came up before the Court on 2 nd August, 2010 when it
was observed that the question whether the petitioner was carrying on
dairy business at the relevant time or not was a disputed question of fact
and no relief in writ jurisdiction could be granted and the remedy of the
petitioner was by way of a suit. Though the counsel for the petitioner had
then sought time to consider the matter but has since filed a rejoinder dated
5th October, 2010 and along with which some more receipts of the
respondent MCD of payment of fine under Sections 417/323 or only under
Section 417 of the DMC Act have been filed.
6. The counsel for the petitioner has contended that the petitioner is a
poor person; that the respondent MCD has retained allotment in favour of
those who could grease the palm of the officials of the respondent MCD
and have cancelled allotment in favour of those who failed to succumb to
the demands of the officials of the respondent MCD. He has contended
that from the receipts aforesaid, the originals of which are also shown in
the Court, it stands abundantly established that the petitioner was carrying
on the dairy business at the relevant time and the allotment in his favour
ought to have been retained. Attention is also invited to the orders dated
4th February, 2010 and 17th May, 2010 asking the respondent MCD to
produce the records. It is contended that no records of any inspection have
been produced inspite of directions.
7. The counsel for the respondent MCD has handed over in the Court
the original file. However, a perusal thereof shows that only the
constitution of the committee for inspection, scheduling of the date of
inspection and the tabulation in which against the name of the petitioner it
is mentioned that the dairy was not found, exist. Thus the same is not of
much help.
8. The question which thus arises is whether in view of the receipts
aforesaid, this Court can abandon the factual enquiry and make a direction
for quashing the cancellation of the allotment in favour of the petitioner.
9. The provisions of law under which the challans were issued viz.
Sections 323 & 417 of the DMC Act prohibit tethering (i.e. to chain an
animal) or milking of any cow or buffalo in a public street and general use
of premises for purposes requiring license, without the said license. As
aforesaid the receipts filed by the petitioner are either only under Section
417 or under Section 417 read with Section 323 of the MCD Act. The
receipts under Section 323 of the Act only indicate that the petitioner was
found tethering the cattle in a public street. However, the same would not
still qualify the petitioner as running a dairy business in a non conforming
area and which in the Public Interest Litigation was made the criteria for
allotment in Ghoga Dairy Project. The petitioner will have to lead
evidence to show that he was at the relevant time carrying on the said
business and which would be subject to cross examination. Without the
same, this Court cannot return a finding of fact that the petitioner at the
relevant time was carrying on a dairy business and without which no relief
can be granted to the petitioner.
10. The counsel for the petitioner has argued that the petitioner has been
pursuing the present petition in this Court for the last two years and is able
to ill afford litigation. However, this Court can grant relief only when a
case thereof is made out and not on sympathetic grounds particularly in the
matter of public largesse as apparently is the case with the allotments in
Ghogha Dairy Project.
11. At this stage, the counsel for the petitioner states that a direction for
refund of the monies deposited by the petitioner be issued to the
respondent MCD. The counsel for the respondent MCD has fairly stated
that the respondent MCD has no objection to the same. The refund be
made to the petitioner as per policy along with interest, if any, in terms of
the directions in the Public Interest Litigation and the Policy of the
respondent MCD. The petitioner to visit the Veterinary Officer, Head
Quarter, Town Hall of the respondent MCD on 21 st February, 2011 along
with a copy of this order and when the cheque in refund of the monies as
aforesaid shall be delivered to the petitioner.
12. The petition is therefore dismissed as not maintainable with liberty
to the petitioner to take appropriate remedies.
No order as to costs.
RAJIV SAHAI ENDLAW
(JUDGE)
FEBRUARY 03, 2011
'gsr'
