Delhi High Court

Municipal Corporation Of Delhi vs Mohd Ismail on 25 July, 2011

Author: Sanjiv Khanna

*          IN THE HIGH COURT OF DELHI AT NEW DELHI
+                 L.P.A. No. 548 OF 2010

                                              Reserved on : 18th April, 2011
%                                             Date of Decision: 25th July, 2011

MUNICIPAL CORPORATION OF DELHI         ....Appellants
             Through Mr. O.P.Saxena and
                     Mr. Mithlesh Kumar, Advocates.

                       VERSUS
MOHD ISMAIL                                          ....Respondent
                         Through Mr.Apurb Lal, Ms. Alka, Mr. Daleep Singh
                                 and Mr. Kiran Babu, Advocates.
CORAM:
HON'BLE THE CHIEF JUSTICE
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 ?               Yes
3. Whether the judgment should be reported               Yes
   in the Digest ?

SANJIV KHANNA, J.

In the present intra-Court appeal filed by the Slum and JJ

Department of the Delhi Municipal Corporation now known as Delhi

Urban Shelter Improvement Board, the challenge is to the decision dated

23rd December, 2009 passed in W.P.(C) No. 819/2009, Mohd. Ismail Vs.

Slum & JJ Department (MCD). By the impugned judgment, the writ

petition filed by Mohd. Ismail, the respondent herein, has been allowed

and the following directions have been issued:-

"46. In view of the above, it is directed as follow:-

(i) the petitioner or his authorised representative shall file duly attested copies of the photocopies whereof stand filed by him before the Director (Allotment) of Slum & JJ Wing of the MCD on 29th December, 2009 at 11.00 a.m.

(ii) the petitioner's case shall be considered and he shall be allotted a plot of 40 sq. meters for commercial user in terms of his entitlement."

2. The main contention and issue raised by the appellant before this

Court as was before the learned Single Judge is delay and laches. The

question, which arises, is to what extent the delay and laches would defeat

the right, if any, of the respondent. In order to decide the issue, relevant

facts may be noticed.

3. The respondent was in occupation of property bearing No.3339,

Ward No.XIV, Sarai Khalil, Sadar Bazar, Delhi, which was demolished in

the year 1976. Before demolition, CID of Delhi Police had carried out a

survey and prepared a report detailing the occupants of the properties,

which were to be demolished. The respondent was identified at Sr.

No.521 and as per the report respondent was in occupation of 22'×12' and

22'×12 (first floor) and the said premises was being used for residence

and factory. Licence No.31083 was mentioned. It records the rent receipt

No. as 741071. The respondent has also placed on record a copy of the

CID survey report at pages 143 and 144 of the paper book in support of

the said contention. There is material in the form of internal file notings,

which show that on verification, it was found that one Mohd. Ismail S/o

Mohd. Ishaque was in occupation of the aforesaid property, which was

being used for residence and factory. The respondent has referred and

relied upon Form No.C (registration certificate of the establishment)

issued under Delhi Shops and Establishments Act, 1954 that he was

operating an establishment from the said premises in the name and style

of Modern Cabinet Manufacturing. It is not disputed by the appellant that

in terms of the policy, the persons in occupation of the properties at Sarai

Khalil, Sadar Bazar, Delhi, which were demolished, were entitled to

alternative residential accommodation. These persons were also entitled

for commercial or industrial plots, if they were carrying on commercial

activities from the premises, which were demolished.

4. The respondent was issued demolition slip No.5198 dated 16th May,

1976 and thereafter allotted a residential flat in Inderlok. The respondent,

however, protested and had asked for change of allotment of the flat. On

24th July, 1985, the respondent was allotted an MIG flat No. A-2/1, Sarai

Khalil, Sadar Bazar, Delhi. There is no dispute about the allotment of the

said residential flat. The appellant does not dispute that the respondent

was entitled to allotment of the said flat.

5. The dispute pertains to allotment of commercial or industrial plot to

the respondent. The respondent has placed on record and relied upon the

letter dated 26th July, 1976 written by the Commissioner, Slum & JJ

Department, DDA to the respondent in connection with the allotment of

an industrial plot at Shahzada Bagh. He was asked to produce his ration

card, failing which allotment shall be cancelled and possession shall be

taken by the department. It is apparent that the respondent did not respond

to this letter. The respondent was asked to produce ration card against the

House No.C-39/8, Main Road, Jafrabad, New Seelampur, Delhi. The said

letter was addressed to Mohd. Ismail at House No.53C, Block A-7,

Inderlok, Delhi. There is some doubt about the authenticity of the said

letter as there is no explanation forthcoming why the respondent was

asked to produce ration card against the aforesaid address at New

Seelampur, whereas as per the demolition slip and the CID survey report,

the respondent was residing at Sarai Khalil, Sadar Bazar, Delhi. The file

number (11/PA/AC/HQ/76) mentioned on this letter is different from the

file number mentioned by the respondent in its subsequent

correspondence, which is No.141/PA/AC/HQ/76, but this appears to be a

typographical error. It may be noted here that the file

No.141/PA/AC/HQ/76 is missing and is not traceable. Office copy of this

letter dated 26th July, 1976 is not available on the records of the appellant.

It is on this letter dated 26th July, 1976 that the claim of the respondent is

based and was reiterated and examined in 1986 and thereafter.

6. The respondent after 1976, wrote the letter dated 2nd June, 1986. In

this letter he had stated as under:-

"Incidentally I met with an accident in those days causing a major by injury which did not allow me to pursue my case for the allotment of alternative plot at Shahzada Bagh. I received the above referred letter from your office but failed to appear before the Office due to the above said reason. My children were very young and therefore they too, could not go to the office.

Sir, I am in a very miserable condition. During the last 10 years, I have been under difficult conditions. Being confined to bed I could hardly do for my family and this forced my children to give up studies and make for the livelihood of the family.

Under the circumstances mentioned above I could not get allotment of plot at Shahzada Bagh.

You are, therefore, requested to kindly allot me an industrial/commercial plot at Shahzada Bagh at the earliest."

(emphasis supplied)

7. This was followed by letters of similar nature dated 18th June, 1986,

and 4th January, 1988. Thereafter, letters dated 25th February, 1991, 26th

June, 1998 and 29th December, 1998 were written by the respondent.

These letters, and the file notings have been examined below.

8. After 1999, there was again silence on the part of the respondent at

least till May, 2003 when it appears that applications/requests were made

for allotment of a commercial plot. These were forwarded through

Minister of Development, Revenue Irrigation & Food and Food & Civil

Supply, Delhi Secretariat and by the then Mayor of Delhi, the Additional

Private Secretary Minister of State for Parliamentary Affairs, Government

of India and the then Municipal Councillor, Qasab Pura consitutency. In

the file notings, it was recorded that the original file was not available,

documents submitted by the respondent were not complete since the

originals were not filed by the respondent. It was recorded in the noting

dated 30th May, 2003 that the allotment was to be examined by the

allotment committee but as the same was not functioning, as and when the

same was constituted , the case of the respondent would be put up to the

allotment committee.

9. Another representation of the petitioner was forwarded by

Chairman, Standing Committee, MCD and by the Additional Private

Secretary to the Ministry of State for Youth Affairs and Sports, Govt. of

India, New Delhi and was processed on 3rd September, 2003. The file

notings in the month of October, 2004 reveal that the respondent had

made a further representation for the plot. This representation was

processed and in the noting dated 22nd December, 2004, it was recorded

that the properties in Sarai Khalil/Turkmangate area were demolished

during 1975-76 and the damages for the period during which the property

remained in the category of residential/ commercial use were charged on

the prevailing rate till the date of demolition. Licence fee was chargeable

for the alternative allotment for the period during which the flat/plot if

allotted remained under the possession of the evictee/allotee. This is

important and shows that the respondent was required to pay of the plot

and also pay damages for using the property at Sarai Khalil area prior to

demolition.

10. Another detailed note dated 7th January, 2005, records that in 1987,

the case of allotment of the commercial plot was assessed in the past and

the respondent was liable to pay damages for commercial use for the

period 1st January, 1969 to 16th May, 1976 @ Rs.5/- per square meter and

Re.1 per square meter for the residential area. The total amount payable

was Rs.13,428/-, but the respondent was not informed. Thereafter, the

file was submitted to the allotment committee for passing of appropriate

orders.

11. It appears that the respondent approached the Public Grievance

Commission, Government of NCT of Delhi by making a complaint.

Vide letter dated 16th August, 2004, the Public Grievance Commission

was informed that the record regarding allotment of flat to the respondent

was available and could be produced whenever required by the respondent

to process the case. Thereafter a number of letters dated 31 st August,

2005, 27th March, 2006, 14th April, 2006, 7th January, 2008, were written

by the respondent. On 27th July, 2009, the allotment committee rejected

the claim made by the respondent, inter alia, recording as under:-

"The applicant was given several opportunity to attend the meetings before Allotment Committee along with the attested/original documents in support of his claim. But even on the last & final opportunity he did not turn up along with the original/attested copies of relevant documents to substantiate his claim for allotment of commercial plot. On 05.05.09 the applicant had submitted photocopies (unattested/ unsigned by the Competent Authority) namely Form-C Delhi Shop & Establishment Act, 1954 and CID survey report. All these documents were sent for verification from the concerned department, but the same could not be verified by the

respective department due to old non-available relevant records.

After examining the records of the department as well as documents submitted by the applicant the Allotment Committee is of the view that the documents pertain to about 30 years old and inspite of several times calls sent to the applicant. The applicant failed to provide the original documents/ attested copy of photocopy of documents before the Allotment Committee. Hence, the Allotment Committee is of the view that there is no justification & weightage in the claim for allotment of alternative Commercial plot in favour of the applicant."

12. This order was then made subject matter of challenge in Writ

Petition No. 819/2009 which has been allowed by the impugned order

dated 23rd December, 2009.

13. The question which arises for consideration is whether delay and

laches in the present case should disentitle the respondent from the reliefs

granted and allowed by the learned Single Judge. In Ram Chand vs.

Union of India, (1994) 1 SCC 44 and State of U.P. and Ors. vs.

Manohar, (2005) 2 SCC 126, it has been held that when the State fails

and is negligent in performing its statutory duties, the delay and inaction

furnishes a cause of action and gives a right to the citizen to invoke

jurisdiction of the Court. When an authority fails to perform its duty

within reasonable time, delay and laches cannot be a ground to deny relief

to a petitioner who has suffered injury and harm because of the delay and

non-performance of duty on the part of the authorities. Similarly, the State

being a virtuous litigant should meet the genuine claims and not deny

them for want of action on their part. At the same time, the question of

prejudice and creation of third party right or interest is an important and

relevant aspect which has to be examined by the Court when the question

of delay arises. Laches also obscures facts, encourages dubious claims and

prevents fair and just adjudication by the Courts. Often relevant and

material evidence and details go missing or are not traceable. These result

in and cause prejudice to the case and defence of the respondent/State.

14. The gaps and hiatus on the part of the respondent have been

referred to above. They are from the period 1976 to 1986, then from

1986/1988 to 1991, then till 1998/1999 and lastly between 2000 till 2003.

What is relevant and material is that the respondent, in order to secure

allotment, was required to produce original papers as well as pay money

in the form of damages to secure allotment. As per the calculations made

by the appellant in 1986, the respondent was liable to pay Rs.5 and Re.1

per square meter for area under commercial and residential use

respectively during the period 1st January, 1969 to 16th May, 1976. The

said amount works out to Rs.13,428/- (Rs.11,190 + Rs.2,238) which may

look paltry or small today but during the relevant period i.e. in 1976, it

was a reasonable amount. Amount was chargeable/payable for alternative

allotment. Doubts and questions about the letter dated 26th July, 1976

have been mentioned above. The original file as was prepared in 1976 is

not traceable and available. In 1986 when the respondent had approached

the authorities for allotment of the commercial plot doubts were expressed

about the respondent's entitlement/claim due to the time gap and missing

file. Similarly, doubts were also raised about the letters produced by him

and the medical certificates. In the noting dated 4th August, 1986, it is

recorded that the age of the respondent mentioned in the medical reports

submitted by the respondent is 26 years, whereas the age mentioned in the

ration card was 54 years. The respondent had stated that he had met with

an accident and suffered major injuries and had relied upon reports of

1977, January, 1978 and one report of July, 1983. This hardly explains

the long hiatus and the delay.

15. As noticed above, the original file in the case of the respondent as

was prepared in 1976 is missing. We do not know what ensued and

transpired after the purported letter dated 26th July, 1976 was written by

the authorities to the respondent. The letter dated 26 th July, 1976 refers to

industrial plot at Shahzada Bagh and a tenement at Inderlok. The

respondent claims that he was allotted a tenement at Inderlok

(subsequently an MIG flat was allotted at Sarai Khalil, Sadar Bazar,

Delhi) but not the plot. The respondent it appears had lost interest in the

commercial plot because of the quantum of damages he had to pay as a

precondition. The delay being substantial and as the original file is not

traceable we do not know what exactly had happened but the respondent

was silent and silence indicates unresponsiveness and unwillingness on

the part of the respondent to comply with his obligations. The present case

is not of mere inaction or failure on the part of the authorities (which for

want of and missing file remains uncertain) but reluctance and intention

of the respondent at the given point of time not to claim any right on the

industrial/commercial plot.

16. In case of delay and laches in filing a writ petition, the court is

required to consider the facts and situation in each case, to decide whether

the petitioner therein has chosen to sit over the matter and has woken up

to gain any extra advantage. Other aspects which have been examined

have been referred to above. In Dehri Rohtas Light Rly. Co. Ltd. vs.

District Board, Bhojpur, (1992) 2 SCC 598, the following test has been

laid down by the Supreme Court:

"13. The rule which says that the Court may not enquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how delay arose. The principle on which the relief to the party on the grounds of laches or delay is denied is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is a reasonable explanation for the delay. The real test to determine delay in such cases is that the petitioner should come to the writ court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. The test is not to physical running of time. Where the circumstances justifying the conduct exists, the illegality which is manifest cannot be sustained on the sole ground of laches. The decision in Tilokchand case relied on is distinguishable on the facts of the present case. The levy if based on the net profits of the railway undertaking was beyond the authority and the illegal nature of the same has been questioned though belatedly in the pending proceedings after the pronouncement of the High Court in the matter relating to the subsequent years. That being the case, the claim of the appellant cannot be turned down on the sole ground of delay. We are of the opinion that the High Court was wrong in dismissing the writ petition in limine and refusing to grant the relief sought for. We however agree that the suit has been rightly dismissed."

17. In State of Maharashtra vs. Digambar, (1995) 4 SCC 683, the

question of delay and laches was examined and it was held as under:-

"14. How a person who alleges against the State of deprivation of his legal right, can get relief of compensation from the State by invoking writ jurisdiction of the High Court under Article 226 of the Constitution even though, he is guilty of laches or undue delay is difficult to comprehend, when it is well settled by decisions of this Court that no person, be he a citizen or otherwise, is entitled to obtain the equitable relief under Article 226 of the Constitution if his conduct is blameworthy because of laches, undue delay, acquiescence, waiver and the like. Moreover, how a citizen claiming discretionary relief under Article 226 of the Constitution against a State, could be relieved of his obligation to establish his unblameworthy conduct for getting such relief, where the State against which relief is sought is a Welfare State, is also difficult to comprehend. Where the relief sought under Article 226 of the Constitution by a person against the Welfare State is founded on its alleged illegal or wrongful executive action, the need to explain laches or undue delay on his part to obtain such relief, should, if anything, be more stringent than in other cases, for the reason that the State due to laches or undue delay on the part of the person seeking relief, may not be able to show that the executive action complained of was legal or correct for want of records pertaining to the action or for the officers who were responsible for such action not being available later on. Further, where granting of relief is claimed against the State on alleged unwarranted executive action, is bound to result in loss to the public exchequer of the State or in damage to other public interest, the High Court before granting such relief is required to satisfy itself that the delay or laches on the part of a citizen or any other person in approaching for relief under

Article 226 of the Constitution on the alleged violation of his legal right, was wholly justified in the facts and circumstances, instead of ignoring the same or leniently considering it. Thus, in our view, persons seeking relief against the State under Article 226 of the Constitution, be they citizens or otherwise, cannot get discretionary relief obtainable thereunder unless they fully satisfy the High Court that the facts and circumstances of the case clearly justified the laches or undue delay on their part in approaching the Court for grant of such discretionary relief. Therefore, where a High Court grants relief to a citizen or any other person under Article 226 of the Constitution against any person including the State without considering his blameworthy conduct, such as laches or undue delay, acquiescence or waiver, the relief so granted becomes unsustainable even if the relief was granted in respect of alleged deprivation of his legal right by the State."

18. It was further observed in paragraph 23:-

"23. Therefore, where a High Court in exercise of its power vested under Article 226 of the Constitution issues a direction, order or writ for granting relief to a person including a citizen without considering his disentitlement for such relief due to his blameworthy conduct of undue delay or laches in claiming the same, such a direction, order or writ becomes unsustainable as that not made judiciously and reasonably in exercise of its sound judicial discretion, but as that made arbitrarily."

19. It is also well settled that repeated representation do not explain

delay in approaching the Court. In Karnataka Power Corporation Ltd. vs.

K. Thangappan, (2006) 4 SCC 322, it has been held as under:-

"6. Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prashad v. Chief Controller of Imports and Exports. Of course, the discretion has to be exercised judicially and reasonably.

10. It has been pointed out by this Court in a number of cases that representations would not be adequate explanation to take care of delay. This was first stated in K.V. Rajalakshmiah Setty v. State of Mysore. This was reiterated in Rabindranath Bose case by stating that there is a limit to the time which can be considered reasonable for making representations and if the Government had turned down one representation the making of another representation on similar lines will not explain the delay. In State of Orissa v. Pyarimohan Samantaray making of repeated representations was not regarded as satisfactory explanation of the delay. In that case the petition had been dismissed for delay alone.