Shri Bawa Singh & Ors vs Mcd & Ors
2011 Latest Caselaw 534 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         Date of decision: 31st January, 2011
+        W.P.(C) 522/2009, CM No.1151/2009 (for stay) & CM
         No.8671/2009 (of the petitioner for impleadment of L&DO as a
         party).

SHRI BAWA SINGH & ORS                                         ..... Petitioners
                 Through:                 Mr. Anil Sapra , Sr. Advocate with
                                          Mr. Manu Nayar & Ms. Vrinda
                                          Kapoor, Advocates.
                                     Versus
MCD & ORS                                                  ..... Respondents
                            Through:      Mr. Ajay Arora with Mr. Sarfraz
                                          Ahmed, Advocates for MCD.
                                          Mr. Anuj Aggarwal with Mr.
                                          Gaurav Khanna, Advocates for
                                          L&DO.
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 no.1 claims to be the allottee (in the year 1954) of

shop No.24 ad-measuring 54.4 sq. yds., South Patel Market, New Delhi.

The petitioners no.2&3 are the sons of the petitioner no.1.It is the claim of

the petitioners that the aforesaid shop being a corner shop, an open piece of

land ad-measuring 60 sq. yds. existed adjacent to the shop; the petitioners

in or about the year 1963 put up a temporary room over the said plot of

land ad-measuring 60 sq. yds. and the said room has been in existence

since then. Claiming that similar plots adjoining other properties had been

allotted by the respondents (MCD & L&DO) to owners of adjacent

properties as per policy, the petitioners claim to have approached the

L&DO in this regard. The petitioners however claim that notwithstanding

their representations no allotment was made in their favour. The petitioners

then filed W.P.(C) No.3563/2007 (i.e. after 44 years of admitted

unauthorized occupation of land) in this Court impleading L&DO and

MCD as a party thereto and seeking direction to the said parties to allot the

said plot to the petitioners.

2. L&DO in W.P.(C) No.3563/2007, on 14th May, 2007 stated that it

had no role to play in the matter as the area stood transferred to the MCD.

On the basis of the Status Report filed by the MCD in that writ petition,

this Court on 20th July, 2007 recorded that the property in question (i.e. the

plot aforesaid) belonged to the MCD. The said writ petition was disposed

of with the direction to the petitioners to make an application to the MCD

for allotment of the said plot and with a direction to the MCD to dispose of

the said application of the petitioners.

3. The present writ petition was filed again seeking the relief of

direction to the MCD to transfer the land to the petitioners and to restrain

MCD from demolishing the superstructure erected by the petitioners

thereon.

4. In pursuance to the aforesaid order in the earlier writ petition, MCD

passed an order dated 9th April, 2009. The senior counsel for the petitioners

points out that in the interregnum MCD had also assured that the matter

was under consideration. The MCD in the order dated 9 th April, 2009 noted

that L&DO had rejected the application of the petitioners for allotment of

the said land and communicated the said rejection to the petitioners as far

back as on 28th November, 1964 and 3 rd April, 1972 on the ground that the

said piece of land is meant for open space as per Layout Plan of the colony

and had called upon the petitioners to remove encroachment at the site. It

was further observed that though by Notification dated 24 th March, 2006

the South Patel Nagar Market had been transferred to the MCD but upon

such transfer MCD was to only exercise certain powers with respect to the

shops and flats in the market and which did not include a power of

conferment of power to transfer land in these markets to any person.

Accordingly application of the petitioners was rejected.

5. Notice of this petition was issued and vide order dated 28 th January,

2009 MCD directed to maintain status quo with respect to the aforesaid

plot of land ad-measuring 60 sq. yds; resultantly the unauthorized

occupation and construction by the petitioners on the said plot of land

continues.

6. MCD in its counter affidavit filed before this Court, besides

reiterating the contents of the order dated 9 th April, 2009 (supra) has also

stated that the aforesaid plot of land cannot be allotted to the petitioners as

the same would be contrary to the Layout Plan of the colony wherein all

similarly situated plots at the end of the plot lines have been left vacant to

afford an effective turning point to the vehicles and to use the vacant plots

as possible parking space.

7. The petitioner has filed a rejoinder controverting the counter

affidavit of the MCD.

8. The petitioner has also filed CM No.8671/2009 for impleadment of

L&DO as a party. L&DO again in its reply to the said application has

stated that upon Notification dated 24 th March, 2006 it is left with no

concern whatsoever with the market and is being wrongly sought to be

impleaded as the respondent.

9. Though formal order of impleadment has not been made as yet, the

counsel for L&DO has also been heard today. He has today reiterated that

L&DO has nothing to do with the matter and is not entitled to deal with the

request of the petitioners for allotment of the land. The senior counsel for

the petitioner and the counsel for MCD have also been heard.

10. It has, at the outset, been enquired from the senior counsel for the

petitioners as to what is the right, if any, of the petitioners to claim such

allotment. The senior counsel draws attention to page 85 of the paper book

being a letter dated 28th January, 1980 of the Department of Rehabilitation,

Govt. of India to the Dy. Chief Settlement Commissioner (G), Settlement

Wing of the Department of Rehabilitation with subject "Disposal of strips

of land in the Rehabilitation colonies in Delhi". The same records the

decision on the terms and conditions governing the disposal of additional

strips of land in the rehabilitation colonies in Delhi/New Delhi. The senior

counsel for the petitioners urges that policy contained in the said letter

entitles the petitioners to allotment of the aforesaid land. There is

ambiguity in the language of the said document as to whether it would

apply to such plot of land or not. However even if the contention of the

petitioners were to be accepted the said terms and conditions are subject

inter alia to the condition that "it has to be ensured first that the strips of

land are not required by the government in public interest".

11. The reason given by MCD of the land being required to be left

vacant to afford effective turning point to the vehicles on for use as

possible parking space, is definitely in public interest. The petitioner has

no indefeasible right to allotment even under the said document. The

senior counsel for the petitioners has however argued that MCD has

rejected the request of the petitioners vide order dated 9 th April, 2009 for

the reason of being not empowered to consider the said request and not for

the reason of allotment not being in public interest. He contends that thus

till date no authority has considered the request of the petitioners under the

policy aforesaid. He states that both L&DO and MCD are washing their

hands off the same. It is contended that MCD in the earlier writ petition did

not state that it was not empowered to consider the request and allowed the

writ petition to be disposed of with the direction to it to consider the said

request. However, now MCD has taken a stand of being not competent to

deal with the request. The senior counsel seeks a direction for

consideration of the request of the petitioners by the appropriate authority.

12. Being aghast that the petitioners in the manner aforesaid have

managed to remain in unauthorized occupation of valuable plot ad-

measuring 60 sq. yds. in the heart of the city and to the deprivation of

public, for nearly half a century, it has been enquired as to what is the right

of the petitioners to continue in possession even if their request has not

been considered by the appropriate authority. The senior counsel again

draws attention to the policy contained in the letter dated 28 th January,

1980 (supra) which while providing the rates to be charged for disposal of

the strips of land, also deals with a situation where the land is under

unauthorized occupation of the prospective buyer. However the same is

again on the condition that the "occupation is unobjectionable". Here, from

the documents on record it is borne out that the occupation by the

petitioners of the aforesaid land was objected to by the L&DO to whom the

petitioners had then applied, as far back as on 28th November, 1964 when

the petitioners were directed to remove the encroachment immediately.

Notwithstanding the same the petitioners have continued in occupation for

the last nearly 50 years.

13. In my opinion, the petitioners have no right to continue in

occupation of the aforesaid land irrespective of their plea of their

application having not been considered. The petitioners are liable to

immediately remove themselves from the said land. The present petition as

also the earlier writ petition (supra) are in fact found to be in abuse of the

process of this Court. The request of the petitioners for allotment was

rejected on 28th November, 1964. The petitioners did not challenge the said

order and allowed it to attain finality. The petitions however again applied

and which was also rejected on 3rd April, 1972. The petitioners, by

repeatedly applying for allotment, and which they are not entitled to have

perpetuated their unauthorized occupation of public property.

14. The MCD in its counter affidavit as aforesaid, besides reiterating the

order dated 9th April, 2009 has also stated that the plot of land cannot be

given to the petitioners as being required to be kept vacant to afford an

effective turning point to the vehicles and for public use as parking space.

The MCD along with the counter affidavit has also filed a key plan

according to which similar corner plots have been left vacant adjacent to

other corner shops in the colony also.

15. The senior counsel for the petitioners has argued that the MCD has

intentionally concealed the Layout Plan and not produced the same. He has

during the hearing handed over in the Court a copy of the Layout Plan.

However the argument on the basis thereof is more to challenge the plea of

the MCD of the open plot being also required for parking purposes. It is

contended that no parking is possible thereon and there are other parking

spaces available in the vicinity. Though the petitioners in their rejoinder

have generally denied that the other similarly situated plots at the end of

plot lines have also been kept vacant but the petitioners have not been able

to show that the same have been allotted to the owners of the shops

adjacent thereto. The senior counsel for the petitioners has drawn attention

to a list filed of plots which pursuant to the said policy are stated to have

been allotted but there is nothing to show that those plots were corner plots

as is the case over here.

16. The reason given by the MCD for keeping the plot open is found to

be in public interest. Even otherwise, I am of the opinion that with many

more floors being added to the erstwhile single/double storyed properties

in the locality and increase in the vehicular population in the city, the

reasoning of the MCD wanting to keep the said plot of land open cannot be

found fault with. Further in view of the reiteration by the counsel for

L&DO, that the market has been vested in the MCD and MCD itself is

entitled to take decision, the decision of the MCD even if it be in its

counter affidavit to not allot the said plot to the petitioners is found

reasonable and not liable to be interfered with in writ jurisdiction.

17. Thus while dismissing this petition, the petitioners are directed to

remove themselves from the said plot of land on or before 1st March, 2011

failing which the concerned Executive Engineer of MCD is directed to

within 15 days thereafter demolish the construction on the aforesaid plot of

land and to re-possess the same.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) JANUARY 31st 2011 pp