Surender Singh vs Govt Of Nct Delhi & Anr
2011 Latest Caselaw 5012 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RSA 177/2011

%                                           12th October,     2011

SURENDER SINGH                                   ..... Appellant
                          Through:    Mr. C.B.Garg, Adv.

                    versus



GOVT OF NCT DELHI & ANR                           ..... Respondents

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported in the Digest?

VALMIKI J. MEHTA, J (ORAL)

1. The challenge by means of this Regular Second Appeal is

to the impugned judgment dated 2.8.2011 of the Appellate Court by

which the Appellate Court allowed the appeal of the respondent no.2

herein, and which respondent no.2 was the defendant no.2 in the Trial

Court. The appeal was allowed by setting aside the judgment dated

15.1.2011 of the Trial Court, and by which judgment the Trial Court

had decreed the suit of the appellant/plaintiff by holding that the

appellant was eligible for allotment of an alternative plot under the

relocation scheme of industries sponsored by the

defendants/respondents.

2. The facts of the case are that the appellant is carrying on

the business of PVC wires and cables at premises no.519/1B/2, Gali

No.1, Vishwas Nagar, Shahdara, Delhi-32. These premises are

indubitably situated in a local commercial area. The appellant applied

for allotment of an industrial plot on 18.4.2000 in terms of the

relocation scheme of industries, and which scheme was formulated

pursuant to the direction of the Hon‟ble Supreme Court in WP(C)

No.4677/1985 titled as M.C. Mehta vs. Union of India. Since the

appellant even after deposit of money was not allotted an industrial

plot, the subject suit came to be filed.

3. The defence of the respondents before the Courts below

was that the scheme for relocation of industries, under which

allotment of an industrial plot can be applied, is only applicable where

the unit of a person is situated in a non-confirming area. Non-

confirming area has been uniformly interpreted by the respondents to

be an area which is not otherwise a designated commercial/industrial

area. At the time of implementation of the scheme, this issue cropped

up as to whether a unit situated in a local commercial area should or

should not be given an industrial plot, and the authorities arrived at a

decision that only units located in non-confirming areas/residential

areas, and not units in designated commercial areas, will only be

entitled to allotment of an industrial plot. The claim of the appellant

for industrial plot was therefore denied by the respondents.

4. The Appellate Court in para 7 of the impugned judgment

has culled out the admitted facts. This para 7 reads as under:

"7. I have heard the arguments and perused the record. Few facts are admitted i.e. the relocation scheme was floated by the appellant as well as cross objectors in terms of direction given by Hon‟ble Supreme Court in WPC No.4677/85 titled as MC Mehta versus Union of India. Secondly, the defendants/appellants floated the scheme under specific head i.e. the scheme was for the allotment of industrial plot under relocation scheme as sponsored by defendant no.1 for relocation of the alternative plot to such persons who were having their industries in non confirming/residential area to the confirming zone/industrial area. Thirdly, the scheme at all did not cover and included shifting of industries which were situated at local commercial areas and lastly that the respondent had b en running the industrial unit in the local commercial areas and his application was rejected only on this ground."

5. The arguments raised on behalf of the respondents before

the Appellate court are contained in para 8 of the judgment and which

reads as under:

"8. The contention of Ld. Counsel for appellant and cross objector in nutshell is that scheme which was floated by the defendant was only for such industries which was situated in non confirming/residential areas and since the area where the manufacturing unit of plaintiff/respondent nno.1 is situated does not come within the ambit of scheme as the same was situated in

local commercial area it was decided by the high power committee dealing with the subject that the unit which are situated in local commercial area are not entitled for getting alternative industrial plot under this scheme, as floated by the government and therefore, the respondent no. 1 was not entitled for such allotment of the industrial plots and the order of Ld. Trial Court is, therefore, not in accordance with law or in accordance with the policy of the government. Second contention of ld. Counsel for appellant as well as the cross objector is also common that the respondent no.1 had applied for industrial plot and his application was rejected on 21.8.02 and file was sent to defendant no.2/cross objector for refund of earnest money on the same day and the present suit was filed by the respondent no.1 in the year 2008 i.e. 20.5.2008 and, therefore, the suit of the plaintiff is barred by law and therefore, the ld. Trial Court has not even framed this issue and as such the order of ld. Trial Court is liable to be set aside."(emphasis added).

6. The Appellate Court has crystallized the issue being

whether there is no difference between a non-confirming residential

area and a local commercial area, i.e. Appellate Court addressed itself

to the issue as to whether the appellant was entitled to have an

industrial plot considering the fact that his industry was already in a

local commercial area and the notification/advertisement of the

respondents, along with the clarification issued by the department,

shows that the scheme only applied to those persons whose factories

were running in non-confirming/residential areas.

7. After crystallizing the issue as stated above, the Appellate

Court has given the following conclusion:-

"The question again comes as to whether local commercial area falls within the ambit of non confirming area or whether it can be duly regularized as an industrial area & unit may be allowed to be run within the same premises/local commercial areas i.e. where the factory is situated.

There is no clear cut explanation of these words either in the petition or in the scheme rather it has been explained that a non confirming area is an area where a unit is being run without any sanction or without any confirmation by an y authority and against the rules, law and bylaws whereas local commercial area inter alia means and include that a place where commercial activities can be run and where all the facilities with respect to water, sanitation, electricity and such other requirements which are necessary to run the commercial complex are being provided by the government in accordance with law.

Definitely in non confirming area the government cannot allow such facilities to be provided to a factory as the same is not being run with the permission of the competent authority. In the present case admittedly, the petitioner is running his factory in a local commercial area. The appellant had been able to prove on record that the government has decided not to relocate the industrial accommodation to such units which are situated in local commercial area and even the advertisement which was initially circulated was also to the effect that the person who were entitled to getting an accommodation under the scheme for relocation are only such persons/units who are running their factories in residential area or non confirming area. The appellant in the present case has not been able to prove that his industrial unit is being run either in non confirming area or in residential areas. Therefore, the order of the ld. Court to that extent is not in accordance with the scheme floated by the government.

         13. Now,     coming to the second part of the
         judgment.    The ld. Trial Court has gone through

certain circulars of the government from its official website and has come to the conclusion that appellant should have been considered for the appellant for industrial unit as for as the policy of the government to remove the industrial unit from the non confirming area to the industrial zone is concerned. This court is of the opinion that the opinion of the ld. Trial court is not in consonance with the scheme as floated by the government. What the government has done or what the government is required to do or should do are two different things. As far as the proceedings in the court are concerned the court has to decide the matter only in view of the facts which are brought to this court. Once the scheme itself is not for the purpose of allotment of the industrial unit/industrial plot to those who are running their industrial activities in the local commercial area the question of brining local commercial area indirectly into the definition of residential/non confirming zone in the considered opinion by this court amounts to traveling beyond the schemes. Therefore, this court is of the opinion that the order of ld. Trial Court on this ground is not sustainable and there appears to be material irregularity in reading the words „local commercial area‟ into the words „non confirming area‟ by the Ld. Trial Court. The order of the ld. Trial court to that extent is set aside."(emphasis added).

8. A reading of the aforesaid discussion of the Appellate

Court shows that as per the stated policy (with its clarification), the

respondent no.1 had been able to prove on record that the

Government had decided not to relocate such industrial units which

are existing in a local commercial area and that the scheme was also

circulated only to such units which were running their factories in

residential area or non-confirming area. Since admittedly the unit of

the appellant was not being run in a non-confirming area/residential

area therefore, the Appellate Court arrived at a finding that the

scheme in question which was floated by the Government did not

apply to the appellant. The Appellate Court has also held that what

the Government has done and what the Government is required to do

or should do are two different things. Once the scheme itself is not for

the purpose of allotment of an industrial plot to those persons who are

running the industrial activity in local commercial areas, to include

such units running in local commercial areas in a scheme would be to

re-write the scheme, i.e. travel beyond the scheme, which is not

permissible to the Courts. Accordingly, the Appellate Court has rightly

come to the conclusion that the appellant‟s unit being not in a non-

confirming/residential area, he was not entitled to benefit of the

scheme.

9. Learned counsel for the appellant argues that the

respondents are adopting a policy of pick and choose and are allotting

the industrial plots even to persons who are running the units in a

local commercial area. However, when I put it to counsel for the

appellant as to whether the appellant has at all specifically pleaded as

to which are those alleged persons/units in the local commercial areas

who/which have been given plots under the relocation scheme and

whether this has been proved by the appellant in its evidence led in

the Trial Court, the learned counsel for the appellant said that there is

no record/evidence before the Trial Court with respect to any

units/persons, who have got plots under the relocation scheme

although they are situated in a local commercial area.

10. A second appeal under Section 100 CPC can only be

entertained, if there arises a substantial question of law. The

aforesaid findings of the Trial Court are findings of facts that the

appellant‟s unit is not situated in a residential area/non-confirming

area and therefore he is not entitled to an industrial plot in terms of

the scheme and which has been applied by the authority uniformly

only to those units situated in non-confirming/residential area, but not

situated in a local commercial area. In view of the aforesaid facts no

substantial question of law arises. This appeal being without merits is

accordingly dismissed.

                                                VALMIKI J. MEHTA,J
OCTOBER     12, 2011
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