Jugal Kishore Khurana vs Ministry Of Urban Development & ...
2011 Latest Caselaw 2748 Del

     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  W.P.(C) No. 240/2009

 %                     Judgment delivered on: 23rd May, 2011

Jugal Kishore Khurana                           ...... Petitioner

              Through: Mr. Anish Kumar Magga, Mr. Jitender
                       Yadav and Mr. Saurabh Mehra, Advs.

                       versus

Ministry of Urban Development & Poverty
Alleviation & Ors.                      ..... Respondents

              Through: Mr.B.V.Niren,    CGSC          for   respondent
                       No.1.

                       Mr. Rajesh Manchanda and Mr. Rajat
                       Manchanda,    Advocates  for  the
                       respondent-DDA.


CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.     Whether the Reporters of local papers may
       be allowed to see the judgment?                         No

2.     To be referred to Reporter or not?                      No

3.     Whether the judgment should be reported
       in the Digest?                                          No




W.P.(C) 240/2009                       Page 1 of 12
 KAILASH GAMBHIR, J. Oral

*

1. By this petition filed under Article 226 of the

Constitution of India, the petitioner seeks directions to direct

the respondents to provide an alternative site to the

petitioner in compliance with the policy dated 17.9.1969.

2. Brief facts of the case relevant for deciding the

present petition are that Pishorilal Khurana, father of the

petitioner herein, was a displaced person and a refugee who

after the partition of the country in 1947 migrated from

Pakistan and settled in Delhi. Like various refugees and

displaced persons the father of the petitioner occupied a

residential site in Lodhi Road and thereafter settled at K-65,

Kalkaji, New Delhi. During that period, as per the

petitioner, his father occupied a site between shop No.31 and

60 Kalkaji, New Delhi for running the business of coal and

fuel depot in the year 1951. The case of the petitioner is that

in the year 1964, for the first time, a notice was issued by the

respondents under Section 7(2) of the Public Premises

(Eviction of Unauthorized Occupants) Act, 1958 whereby the

father of the petitioner was asked to show cause as to why

the damages amounting to Rs.10,195.92 for the period from

1.1.1959 to 31.3.1964 @ 56 paisa per sq.yds. per month be

not recovered from him. The petitioner has further stated

that the said notice was duly replied by his father vide letter

dated 28.12.1964. It has been further stated that

subsequently the respondent No.1 had formulated a scheme

which was circulated vide memorandum dated 17.9.1969

whereby the Government had declared to grant alternative

site to such eligible squatters in lieu of the site which was in

the unauthorized occupation of such squatters, but on the

furnishing of an affidavit to the effect that they were in

unauthorized occupation of the site before 1.7.1960 and no

alternative site has been allotted by them. Pursuant to the

said policy, as per the petitioner, his father filed an affidavit

with the covering letter dated 16.10.1969 and the same was

duly received by the officers of respondent No.1. After filing

of the said affidavit, father of the petitioner had been

regularly approaching the office of respondent No.1 for the

allotment for an alternative site but no decision has been

taken by the respondents. It is also the case of the petitioner

that he had filed a suit for permanent injunction to seek

restraint order against the respondents not to interfere in the

peaceful possession of the said shop by the petitioner. It is

also the case of the petitioner that the said shop was sealed

by the order dated 17.9.2007 passed by the Monitoring

Committee which was constituted by the Hon'ble Supreme

Court in the case of M.C.Mehta v. Union of India & Ors. WPC

No. 4677/1985. After passing of the said order, the

petitioner has approached this Court seeking direction for

the grant of an alternative site.

3. In the counter affidavit filed by the respondent

No.1 and the stand taken with regard to the controversy in

hand is that this petition is not maintainable as the petitioner

never paid the damages in terms of the memorandum dated

17.9.1969. It is also the case of the respondents that the

petitioner kept on occupying the said land unauthorisedly

and it is only when an order dated 24.8.1964 was passed by

the learned Estate Officer for the first time then the

petitioner came forward to pay Rs.1,000/- towards damages.

Respondents have also submitted that to avail benefit of the

said policy dated 17.9.1969, the father of the petitioner was

required to clear all damage charges levied on him for

unauthorized occupation of the said premises. Yet, another

requirement of the policy was that the encroachment should

be prior to 1.7.1960 and such persons seeking alternative

plot were not allotted any alternative site by any Government

agency like NDMC or DDA. The case of the respondents is

that since the petitioner failed to pay the amount of damages,

therefore he was not entitled to claim any alternative site.

4. Arguing for the petitioner, counsel submits that

the petitioner in fact had paid an amount of Rs.1,000/- on

18.7.1973 and then an amount of Rs.1731.40 on 21.10.1973

and therefore it cannot be said that the petitioner had not

paid the amount of damages for unauthorized occupation of

the said premises. Counsel also submits that an affidavit in

compliance of the said policy was duly filed by the petitioner

and this fact has not been disputed by the respondent No.1 in

their counter affidavit. Counsel has also produced before this

Court, a copy of the memorandum dated 14.8.1972 issued by

respondent No.1 in favour of father of the petitioner stating

that the matter regarding transfer of site for running of fuel

depot at Kalkaji is under consideration of the Department of

Rehabilitation, New Delhi. Based on the said payment made

by the father of the petitioner and filing of an affidavit by the

father of the petitioner, the counsel for the petitioner states

that the petitioner is entitled for an alternative site.

5. Respondent No.1 and respondent No.2 on the

other hand submit that the petitioner never came forward to

pay the amount of damages based on the said policy and it is

only when the steps were taken by the respondents under

Section 7(2) of the Public Premises (Eviction of Unauthorized

Occupants) Act, 1958 the petitioner came forward to pay

amount of Rs.1,000/- in compliance of the order of the Estate

Officer dated 24.8.1964. Counsel further submits that

another show cause notice dated 23.2.1974 was issued to the

father of the petitioner thereby calling upon him to pay

Rs.14,619.18 Paisa towards damages. Counsel further

submits that the petitioner cannot claim any benefit of the

said payment which was made by him only when order was

passed by the Estate Officer and not pursuant to the said

policy of the Government dated 17.9.1969.

6. I have heard learned counsel for the parties and

given my anxious consideration to the arguments advanced

by them.

7. It is not in dispute between the parties that the

petitioner was unauthorisedly occupying shop No. K-65 at

Kalkaji, New Delhi after his father had shifted to Delhi as a

displaced person on account of the partition of the country.

The Government of India vide memorandum dated 17.9.1969

had announced a policy to allot alternative shops to all the

eligible fuel depot holders who were running fuel depots

unauthorisedly on Government land for some time. The said

policy is reproduced as under:-

"GOVERNMENT OF INDIA

MIN.OF HEALTH AND FAMILY PLANNING WORKS HOUSING & URBAN DEVELOPMENT LAND & DEVELOPMENT OFFICE VITH FLOOR: NIRMAN BHAWAN

No.LIII/8/2(12)/67 NEW DELHI DATED THE 17/9/69

SUB: ALLOTMENT OF FUEL DEPOTS TO ELIGIBLE SQUATTERS.

The question of allotment of sites to the eligible fuel depot holders who are/were running fuel depots unauthorisedly on Govt. land had been under consideration of the Government for some time past and it has now been decided that alternative sites to such of the eligible squatters may be allotted subject to payment of damages in respect of the site which is/was in their unauthorized occupation and on their furnishing an affidavit to the effect that they were in unauthorized occupation of the site before first July 1960 and that no alternative site in lieu of the site which is/was in their unauthorized occupation has/had been allotted to them by any other authorities vis. Delhi Development Authority/Delhi Admn./New Delhi Municipal Committee/and Municipal Corporation of Delhi.

It is requested that the affidavit as stipulated above may please be furnished within one month from the date of issue of this memo to enable this office to determine finally your eligibility for allotment of alternative site and to allot an alternative site. In case the requisite affidavit is not received within the period stipulated above it shall be assumed that you are not interested in allotment of an alternative fuel depot site.

In that event action shall be taken for your removal from the site in your unauthorized occupation and recovery of damages.

sd/-

(SHITAL PRASAI) LAND & DEVELOPMENT.....

THE PRESIDENT OF INDIA

A perusal of the said policy would clearly show that to claim

allotment of an alternative site the following conditions were

required to be fulfilled by the person to seek such allotment:-

i. The applicant should have been running fuel depot

unauthorisedly on a Government land.

ii. That the alternative site would be allotted in favour of

such a person subject to payment of the entire damages in

respect of such a site which was under the unauthorized

occupation of the applicant.

iii. That such an anauthroised occupation should be prior to

1.7.1960.

iv. No such alternative site was allotted by any of the

Government authorities at the DDA, MCD or NDMC in favour

of such an applicant.

8. Under the said policy, the applicant was required

to file an affidavit to be furnished by the person within a

period of one month from the date of the said memo so as to

see whether he was eligible for the allotment of an

alternative site or not. Despite many directions given by this

Court, the petitioner has failed to place on record any

document to show that his father had made any payment

towards damages for the unauthroised occupation of the

Government land so as to fulfill one of the basic requirements

laid down under the said policy. During the course of the

hearing also no such plea was taken by the counsel for the

petitioner that any such payment in response to the said

policy was made by the father of the petitioner. The only

plea taken by the counsel for the petitioner is that a payment

of Rs.1,000/- was made by the petitioner on 18.7.1973 and

then a sum of Rs.7340/- was paid by the father of the

petitioner on 29.10.1973. On the other hand, the defence

taken by the respondents is that such payments were made

by the petitioner when a show cause notice was served on the

father of the petitioner under Section 7(2) of Public Premises

(Eviction of Unauthorized Occupants) Act, 1958 and also

when an order dated 24.8.1964 was passed by the learned

Estate Officer against the petitioner. The date of the

payment claimed by the petitioner no doubt shows that such

payment was made by the petitioner after the Estate Officer

had passed an order against him. Not only that, the

respondents had issued another notice dated 23.2.1974

calling upon the petitioner to pay the sum of Rs.14,619.18.

9. The subsequent payment of damages pursuant to

the orders of the Estate Officer or even in response to the

show cause notice of the respondents would not have made

the father of the petitioner or the petitioner eligible for the

grant of an alternative site so far his entitlement in terms of

the policy dated 17.9.1969 is concerned. The petitioner thus

clearly has failed to satisfy this Court that he had any legal

right to claim an alternative site once his father had failed to

pay the amount of damages in terms of the said policy.

Entitlement of the site according to the said policy could be

tested, even ignoring the fact that he had approached this

Court after a lapse of 40 years, had he been able to satisfy

this Court that his father or he himself had fulfilled all the

requirements laid down by the respondents in the said policy.

10. In the face of the admitted facts and in the light of

the aforesaid discussion, there is no merit in the petition and

the same is hereby dismissed.

May 23, 2011                            KAILASH GAMBHIR, J