Shri Ishwar Dass vs Union Of India And Anr.
2011 Latest Caselaw 2799 Del

     IN THE HIGH COURT OF DELHI AT NEW DELHI


+                C.M. No.9439/2009 in W.P.(C) No.332/93


%                         Judgment delivered on: 25th May, 2011


Shri Ishwar Dass                          ... Petitioner.

                     Through: Mr. Keshav Dayal, Sr. Advocate
                              with Mr. Gagan Mathur, Adv.


                          versus


Union of India and Anr.                   ..... Respondents

                     Through: Mr. Ashwini Bhardwaj, Adv.


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

KAILASH GAMBHIR, J. Oral

*

1. By this application filed under Order XXII Rule 10

r/w Section 151 of the Code of Civil Procedure, 1908 the

applicant Narender Kumar seeks his substitution in place of

the deceased petitioner Ishwar Dass in view of the fact that

the original petitioner had transferred the property in

question i.e Fuel Depot, Behind Alexandra Chummery No.3,

Near Gole Post office, New Delhi in favour of the applicant.

2. In support of the present application, Mr.

Keshav Dayal, learned Senior Advocate appearing for the

applicant submits that the applicant is entitled to be

substituted in place of the deceased petitioner based on the

sale documents which were executed by him in favour of the

applicant, details of which have been given in para 3 of the

application. Mr. Dayal has placed reliance on the judgment

of this court in Kuldip Singh Suri vs. Surinder Singh

76(1998) DLT 232. Counsel also submits that the

allegations made by the applicant in the present application

have not been refuted by the respondent and therefore the

applicant deserves to be substituted in place of the deceased

petitioner. Counsel also states that the petitioner had

approached this Court at the stage when the proceedings

were still pending before the learned Estate Officer and

therefore this court after substituting the name of the

applicant needs to remand this matter. Counsel also states

that in fact the deceased petitioner had paid the entire

amount of arrears and no rent is due and therefore, the

proceedings initiated by the respondent against the

petitioner were ex-facie illegal.

3. Opposing the present application, Mr. Ashwani

Bhardwaj learned counsel appearing for the respondent

submits that the petitioner himself was an unauthorized

occupant on the Government land and the proceedings for

eviction and for recovery of damages under Sections 4 and 7

of the Public Premises Act were initiated against him.

Counsel further submits that the sole case of the petitioner

was that he was entitled to rehabilitation under the Gadgil

Assurance. Counsel further submits that the case of the

respondent before the Estate Officer as well as before this

court is that the Gadgil Assurance is not extended to

commercial premises. Counsel further submits that this

issue is no more res integra as the Hon'ble Division Bench of

this Court in the case of Madan Lal Jain Vs. Union of

India & Anr. CWP No.3530/1992 decided on 11.07.2002 and

in other cases has already taken a view that the Gadgil

Assurance is not extended to business or commercial

premises. Counsel further submits that once the deceased

petitioner himself was not entitled for rehabilitation under

the Gadgil Assurance, the present applicant who claims to be

the purchaser of the site in question cannot have a better

claim.

4. I have heard learned counsel for the parties.

5. Before dealing with the application under

consideration, it would be apt to set out the brief background

of facts which led the deceased petitioner to file the present

petition invoking jurisdiction of this court under Article 226

of the Constitution of India. As per the case set up by the

deceased petitioner, he along with his father and other

members of his family had migrated to India from West

Pakistan during the partition of the country in the year 1947.

Being a displaced person the petitioner had occupied the

public land near CPWD Enquiry Office at Mahadev Road,

New Delhi. It was also the case of the petitioner that for

earning his livelihood he started running a fuel depot in the

name and style of M/s Mohra Mal Lekh Raj at Mahadev Road,

New Delhi and thereafter he shifted to a place near Gole Post

Office, New Delhi on a plot of land measuring 124 sq. yards.

It was also the case of the petitioner that under the Gadgil

Assurance dated 29.9.1951, he was entitled for an alternative

site being a displaced person. It was also the case of the

petitioner that the petitioner had been paying tehbazari tax

to the NDMC for the said premises under his occupation. It

was further the case of the petitioner that the proceedings

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

Unauthorized Occupants) Act were initiated against him. The

said petitioner had appeared before the Estate Officer and

explained that he was not an unauthorized occupant being a

displaced person from West Pakistan and was entitled for an

alternative allotment under the Gadgil Assurance and as per

the petitioner, the proceedings under the Public Premises Act

were withdrawn against him. It was also the case of the

petitioner that again fresh proceedings were initiated against

him under Section 4 and 7 of the Public Premises Act and a

preliminary objection was raised by the petitioner before the

learned Estate Officer that he was covered under the Gadgil

Assurance and therefore the provisions of Public Premises

Act could not be invoked against him. The said preliminary

objection raised by the petitioner was rejected by the

learned Estate Officer vide order dated 28th February, 1992

and feeling aggrieved with the said order the said petitioner

had filed the petition in hand.

6. The learned Estate Officer in the impugned order

took a view that the squatters using the public land for

commercial purposes are not entitled to any alternative site

under the Gadgil Assurance. This writ petition was taken up

by this court on 19.1.93 when the show cause notice was

directed on the respondents. Rule D.B. in this petition was

directed by this court vide order dated 1.2.94 and this

petition was directed to be taken up for hearing along with

W.P.(C) No. 3430/92. Now, during the pendency of the

present petition, the applicant Mr. Narender Kumar has

moved the present application under Order XXII Rule 10 CPC

to seek substitution of his name in place of the deceased

petitioner Mr. Ishwar Dass. In the present application, the

applicant has stated that he came to know from the relatives

of the petitioner that he expired long back in the year 1994

and he was not aware of his demise till the end of June, 2009.

The applicant has further stated that during his lifetime the

deceased petitioner had executed series of documents in his

favour so as to transfer the said land in question in his

favour. The nature of documents alleged to be executed by

the deceased in favour of the applicant have been detailed in

para 3 of the application. Without commenting on the

authenticity and the effect of execution of such documents, it

would be suffice to say that admittedly the deceased was in

unauthorized occupation of a Government land being a

squatter. The sole basis of the claim of the deceased

petitioner before the learned Estate Officer was that he was

entitled to allotment of an alternative site under the Gadgil

Assurance. The said plea of the deceased petitioner was

negated by the learned Estate Officer vide order dated

28.02.1992 and which order was challenged by him before

this court in the present petition. In a connected writ

petition bearing W.P.(C) No. 3430/92 titled Randhir Kumar

Sharma & Ors. vs. Union of India decided on 18.03.2009, the

Division Bench of this Court after placing reliance on the

earlier decision of the Division Bench of this Court in Madan

Lal Jain Vs. Union of India & Anr. (supra) reiterated the

view that the Gadgil Assurance covers only residential

squatters and not commercial squatters, that too in relation

whereto an encroachment has been made by poor persons.

It would be appropriate to reproduce the relevant para of the

same as under:

"7. It is observed that the Division Bench of this Court decided the very issue raised by the petitioners in the present writ petitions. The Division Bench held that the Gadgil Assurance would not curtail the jurisdiction of the Estate Officer who is a statutory authority under the said Act, as the statutory power can be curtailed or abridged or taken away only by reason of the provisions of statute and not otherwise. Further, it came to a conclusion that a bare perusal of the office memorandum dated 31st January 1969 referred to in the judgment of Madan Lal Jain (Supra) clearly shows that the „Gadgil Assurance covers only residential areas in relation whereto an encroachment had been made by poor persons.

8. We cannot but agree with the decision of the Division Bench in re: Madan Lal Jain (Supra). Thus, the submission of the petitioners that their unauthorized occupation for the purpose of carrying out their business was covered by the Gadgil Assurance is without any merit. In the circumstances, we are of the opinion that in a case of this nature this Court

having regard to the larger public interest, would not exercise its discretionary jurisdiction under Article 226 of the Constitution of India. The writ petitions are, therefore, dismissed without any order, however, as to costs."

7. Since the connected writ petition (W.P.(C)

3430/92) was dismissed by the learned Division Bench of

this Court vide order dated 18.3.2009 and somehow the

present petition got detached from the said petition

therefore, the present petition remained pending. Since the

issue is no more res integra, therefore this court cannot take

any other view but to reiterate the view taken by the Hon'ble

Division Bench of this court in Randhir Kumar Sharma &

Ors.vs. Union Of India (Supra).

8. As per the said legal position once the deceased

petitioner himself was not entitled to allotment of an

alternative site, therefore, the applicant who has claimed

himself to be a successor in interest based on some transfer

documents cannot have a better claim. Even otherwise the

deceased petitioner being a squatter himself had no right to

transfer the Government land in favour of the applicant.

9. In the light of the aforesaid, there is no merit in

the present application, the same is accordingly dismissed.

W.P.(C) No. 332/93

Since vide aforesaid order the application filed by

the applicant under Order XXII Rule 10 CPC is dismissed and

in view of the fact that the petitioner is stated to have

expired in the year 1994, therefore, the present petition does

not survive any more being abated and also because of the

decision of the Hon'ble Division Bench of this Court in

Madan Lal Jain's case (supra).

In the light of the aforesaid, the present petition is

accordingly disposed of.

May 25, 2011                              KAILASH GAMBHIR, J
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