Sh. Gurbachan Singh (Decd.) vs Union Of India & Ors.
2011 Latest Caselaw 212 Del

              *IN THE HIGH COURT OF DELHI AT NEW DELHI
                                          Date of decision: 14th January, 2011

+                                  W.P.(C) 2649/1995
SH. GURBACHAN SINGH (DECD.)                                    ..... Petitioner
                   Through: Mr. Sudhir                      Kumar Sharma,
                            Advocate.

                                      Versus
UNION OF INDIA & ORS.                                         ..... Respondents
                    Through:                Mr. B.V. Niren, Advocate for R-1.
                                            Ms. Saroj Bidawat & Mr. Harim
                                            Om Sharma, Advocates for R-2.
                                            Mr. Sanjay Poddar & Mr. Vivek
                                            Mohanty, Advocates for R-3.
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 petitioner, claiming to be the allottee of shop No.512, Old Lajpat

Rai Market, Delhi-110 006, filed this petition for directing the respondents

Department of Internal Security, Rehabilitation Division of the Union of

India and the MCD to fix the valuation of the said shop in accordance with

the provisions of the Displaced Persons (Compensation & Rehabilitation)

Act, 1954 and the Rules (of the year 1955) framed thereunder and to allot

the same to the petitioner, as a displaced person, on rental basis. Relief is

also claimed for direction to the respondents to have transferred the

ownership rights in respect of the said shop and lease hold rights in respect

of the land underneath the shop in favour of the petitioner.

2. A perusal of the order sheet shows that the petitioner along with the

writ petition had not filed any document of title in his favour. This Court on

21st July, 1995 ordered that the matter will be considered only when the

document of title is filed.

3. The petitioner thereafter filed additional documents which were

considered by this Court on 21st August, 1995. It was observed that the said

documents indicated that in lieu of Khokha No.704 earlier allotted to the

petitioner, Shop No.512 was allotted to the petitioner. On the statement of

the petitioner that documents of title with respect to the said shop had not

been executed in his favour though he is in possession thereof and further

that the documents had been executed in favour of others, Rule was issued

on the petition.

4. Neither of the respondents has filed a counter affidavit inspite of

repeated opportunities. On 28th January, 2010 on oral prayer of the

petitioner, Government of NCT of Delhi through Evacuee Property Cell was

impleaded as respondent No.3. The said respondent also inspite of

opportunities has not filed any counter affidavit. The counsels have been

heard.

5. The counsel for the respondent has invited attention to Annexure XIV

at page 80 of the paper book, being the reply dated 25 th May, 1993 of the

Department of Internal Security, Rehabilitation Division (Settlement) to the

petitioner in response to the claim of the petitioner for conferment of

ownership rights in the shop upon him. In the said reply, it was stated that

no notice calling upon the petitioner to pay the cost of land and super

structure had been issued and as per the terms and conditions prescribed on

27th October, 1989 for grant of ownership rights qua the shops in Lajpat Rai

Market, the cost of land underneath the shop is to be charged from the

allottees @50% of the pre-determined commercial rates notified and

existing in Chandni Chowk area on the date of transfer, plus ground rent. It

was also informed that the lease deed in respect of the land is to be issued by

respondent MCD since the land underneath belonged to respondent MCD.

6. The petitioner by the said letter was also informed that the

Government had not taken any decision earlier to grant ownership rights of

the shop in the said market. Attention of the petitioner was invited to

W.P.(C) No.197/1988 filed by Old Lajpat Rai Market Traders Association,

also claiming ownership rights of the shops on the basis of capitalized value

equivalent to twenty years annual rent as against the rates aforesaid laid

down by the government on 27th October, 1989 (supra). In the Writ Petition

(C) No.197/1988 filed by the Association, the demand at the said rate was

impugned. The Government contested the said writ petition filed by the

Association by pleading that Lajpat Rai Market did not form part of the

compensation pool and as such the Rules under which the ownership rights

of the rehabilitation markets were earlier transferred to the displaced persons

against verified claims under the Displaced Persons (C&R) Rules were not

applicable to Lajpat Rai Market and that the shops in Lajpat Rai Market

were being transferred to the allottees as per the Cabinet decision under the

Directorate of Estates. The writ petition filed by the Association was

dismissed vide judgment dated 22nd October, 1990 finding that no case of

discrimination of Lajpat Rai Market was made out.

7. The petitioner was thus informed vide the said letter dated 25th May,

1993 supra that ownership could be transferred in his favour upon his

clearing the arrears of license fee and upon payment of the transfer charges

applicable at the time of transfer and complying with the other formalities.

8. The petitioner though has filed the said letter dated 25th May, 1993

himself before this Court but has not controverted the contents thereof.

Rather it has again been re-agitated that the Lajpat Rai Market is covered by

the Displaced Persons (Compensation & Rehabilitation) Act and the price of

transfer is to be determined in accordance with the Act. The said question

having been finally decided in writ petition preferred by the Association and

in which it was held that the market is not covered by the Act cannot be re-

agitated.

9. Faced with the aforesaid, the counsel for the petitioner seeks

adjournment to consider the matter.

10. The matter has remained pending for the last fifteen years. The

document from which the petitioner is found disentitled to the relief has

been produced by the petitioner himself. The petitioner if not before filing

the writ petition at least thereafter in the last fifteen years ought to have

obtained proper instructions in this respect. The matter cannot now be

adjourned.

11. The counsel for the petitioner has next contended that the title of the

petitioner is being changed by the respondents from that of a tenant to that

of a licensee. Reliance in this regard is placed on the rent receipts filed by

way of additional documents as aforesaid in which the payment received

from the petitioner is described as rent. The petitioner has however since

also placed before this Court the copy of letter dated 17th May, 1969 of

allotment in his favour. From a perusal of the said letter, it appears that the

petitioner was earlier occupying a stall in Lajpat Rai Market and in lieu

thereof and on the condition of removing himself from the said stall was

allotted the shop. The said letter does not expressly state whether the

allotment was as a tenant or as a licencee. Besides the fact that no such

relief has been claimed in the petition, such declaration of the title in which

the petitioner was put into possession of the shop cannot be given in writ

jurisdiction, being a mixed question of law and fact.

12. The counsel for the petitioner has lastly urged that the petitioner had

offered the monies to the respondents but notwithstanding the same, the

ownership was not transferred in favour of the petitioner. From a perusal of

the file, it appears that the petitioner was not offering / paying the price as

laid down by the respondents but was wanting the price to be fixed under the

provisions of the Displaced Persons (Compensation & Rehabilitation) Act

and it is for this reason that the ownership rights were not transferred to the

petitioner.

13. Once the Division Bench of this Court in the writ petition filed by the

Association has already held that the said market and the shops therein are

not covered by the Displaced Persons Act, the question of the petitioner

being entitled to fixation of price in accordance with the same does not arise.

Of course if the Policy of transfer of ownership rights still exists, the

petitioner in accordance therewith and law shall be entitled to the benefit

thereof if so found entitled.

14. With the aforesaid observations, the petition is dismissed. I refrain

from imposing any cost though the petitioner is found to have indulged in

re-litigation.

RAJIV SAHAI ENDLAW (JUDGE) JANUARY 14, 2011 'gsr'