Nasiruddin And Ors vs Mcd And Ors
2011 Latest Caselaw 4862 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+             W.P.(C) 7239/2011 and CM 16457/2011

                                       Decided on: 29th September, 2011.
IN THE MATTER OF :
NASIRUDDIN AND ORS                                      ..... Petitioners
                          Through:     Mr. Sarfaraj Hussein, Adv. with Mr.
                                       Masood Hussein, Mr. M.M. Shukla,
                                       Advs.
                    versus

MCD AND ORS                                              ..... Respondents
                          Through:     Ms. Mansi Gupta, Adv. for MCD.
                                       Mr. Arun Birbal, Adv. for R-3/DDA.

 CORAM
*HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may              Yes
        be allowed to see the Judgment?

     2. To be referred to the Reporter or not?             Yes

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

HIMA KOHLI, J. (Oral)

1. The present petition is filed by the petitioners praying inter alia for

directions to the respondents to conduct a survey of the dairies of the

petitioners as also to consider the applications of the petitioners for

allotment of plots in Ghogha Dairy as per law.

2. At the outset, counsel for the petitioners was requested to inform

the Court as to the date on which the applications, copies of which have

been placed on record at pages-20-31, were submitted to the

respondent/MCD. The said query was raised in view of the fact that

photocopies of the aforesaid applications placed on record by the

petitioners neither bear a date of filing of the applications nor an

endorsement of the respondent/MCD showing receipt of the said

applications. Counsel for the petitioner orally submits that though there

is no averment in the writ petition as to the exact date on which the

aforesaid applications were submitted by the petitioners to the MCD, the

said applications were, in fact, submitted sometime in the year 2004.

3. To test the aforesaid submission made on behalf of the petitioners,

this Court has perused the averments in the plaint, copy of which is

placed on record at page-32-38. The aforesaid suit for permanent and

mandatory injunction instituted by the petitioners on 10.12.2009, against

the respondent/MCD is pending before the learned Senior Civil Judge. A

perusal of the said plaint shows that the petitioners (plaintiffs therein)

had applied for the re-settlement and rehabilitation of dairy farms in Delhi

under a scheme floated in the year 1997. In para-7 of the plaint, it was

mentioned that the petitioners did not file their applications with the

respondent/MCD for the Ghogha Dairy project as they were under the

impression that since they had already filed applications in the year 1997,

for allotment with the prescribed fee, they were not required to do so

again in the year 2004. It is, thus, apparent that the averments made in

the present petition that the petitioners submitted their applications to

the respondent/MCD in the year 2004, are incorrect and contrary to their

stand in the suit proceedings. In fact, it appears that the said

applications were never submitted by the petitioners to MCD. Counsel for

the petitioner is unable to explain the circumstance in which the

petitioners have failed to mention the date of their submitting applications

under the Ghogha Dairy project floated by the respondent/MCD for

relocation of their dairies existing in urbanized areas of NCT of Delhi,

more so when the entire relief in the present petition hinges on the said

applications. Further, no proof of actual deposit of the said applications

with the respondent/MCD has been placed on record by the petitioners.

4. The aforesaid view is fortified by the submission by the counsel for

the respondent/MCD that applications under the aforesaid scheme were

invited from parties interested in relocating their unauthorized dairies

from urbanized areas of NCT of Delhi to Ghogha Dairy project on three

occasions, for the first time on 03.09.2004, which were required to be

submitted by 20.09.2004; the second time, such applications were invited

was on 27.07.2007 to be submitted by 14.08.2007; and the third time

they were invited on 30.03.2010 to be submitted by 29.04.2010.

5. In view of the fact that the petitioners have not been able to

establish the factum of their filing the applications with the

respondent/MCD for seeking allotment of alternate plots in the Ghogha

Dairy project for running their dairies and considering the fact that the

petitioners had three opportunities to apply to MCD for relocation of their

dairies to the Ghogha Dairy Project, none of which appear to have been

availed by the petitioners, the question of issuing any directions to the

respondent/MCD for allotment of plots in their favour, does not arise.

This Court is not inclined to entertain the present petition.

6. The petition is, therefore, dismissed in limine, along with pending

application. However, it is made clear that if and when the

respondent/MCD invites further applications from the public for relocation

of unauthorized dairies, the petitioners would be at liberty to apply at that

time for allotment of plots as per the rules applicable. This will, however,

not create any special equities in favour of the petitioners insofar as the

removal of their existing dairies is concerned, if they are unauthorized

and are required to be removed as per law.

HIMA KOHLI,J SEPTEMBER 29, 2011 'anb'