Daya Wanti vs M.C.D. And Ors.
2012 Latest Caselaw 1949 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

+              W.P.(C) 5268, 5319, 5322 and 5327/2010

                                                       Decided on: 21.03.2012
IN THE MATTER OF
DAYA WANTI                            ..... Petitioner in W.P.(C) 5268/2010
NARENDER KUMAR & OTHERS               ..... Petitioner in W.P.(C) 5319/2010
INDERJEET SINGH                       ..... Petitioner in W.P.(C) 5322/2010
UMRA DEVI                             ..... Petitioner in W.P.(C) 5327/2010
                  Through:            Ms. Neha Gupta, Advocate with
                                      Ms. Sidhi Arora, Advocate
                   versus

M.C.D. AND ORS.                                              ..... Respondents
                         Through:     Ms. Manpreet Kaur, Advocate for
                                      Mr. Mukesh Gupta, Advocate for
                                      R-1/MCD with Mr. Satish Kumar, LDC.
                                      Mr. S.K. Rout, Advocate for R-2.
                                      Mr. B. Ghoshal, Advocate for LR of
                                      respondent No.3, Mr. Kumar Gaurav in
                                      W.P.(C) 5327/2010.

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI


HIMA KOHLI, J. (ORAL)

1. A batch of four writ petitions have been filed to challenge Resolution

No.240 of the respondent/MCD dated 14.10.2009 for rehabilitation of

affected persons on account of execution of the project of widening of Kishan

Ganj Road Under Bridge. For the sake of convenience, the facts of W.P.(C)

No.5268/2010 are being taken note of in the present judgment.

2. The facts of the case that lie in a narrow compass are that the

petitioner is the owner of shop No.77, Azad Market, Delhi. The said shop

had been leased out to him for a period of 99 years by the Land and

Development Officer, Government of India vide lease deed dated

02.07.1962. In the year 2007, the aforesaid shop was transferred by the

L&DO to the respondent/MCD. On 23.11.1992, the Ministry of Surface

Transport, Government of India approved the project for widening of Kishan

Ganj Road Under Bridge (RUB). On 13.06.1994, respondent No.1/MCD had

sanctioned an expenditure in the sum of `2436.35 lacs for transferring 121

shopkeepers from L&DO to MCD who were to be allotted a uniform size of

plots. On 14.05.2009, respondent No.1/MCD held a meeting to decide the

manner in which the 121 shopkeepers affected by the widening of RUB at

Kishan Ganj were to be rehabilitated.

3. In terms of the decision taken by the respondent No.1/MCD as

recorded in Resolution No.240 dated 14.10.2009, it was resolved that as

recommended by the Standing Committee, MCD vide its Resolution No.280

dated 02.09.2009, the proposal of the Commissioner, MCD contained in his

letter dated 20.08.2009, be approved. Copies of the Resolution No.280 and

the letter dated 20.08.2009 issued by the Commissioner, MCD have not

been placed on record. However, counsel for respondent No.1/MCD, who

states that she has brought the records with her, hands over a copy of the

Resolution No.280 relating to Item No.118, pertaining to rehabilitation of

affected persons on account of execution of work of project of widening of

Kishan Ganj RUB. In terms of Resolution No.280, it was resolved by

respondent No.1/MCD that the Corporation would approve the proposal

made by the Commissioner, MCD as contained in his letter dated

20.08.2009.

4. In the letter dated 20.08.2009 addressed by the Commissioner, MCD

to the Municipal Secretary, MCD, one of the issues examined was as to

whether the tenants in the area, who were operating their business from the

premises of the lessees for the past 20-40 years, would be entitled for any

compensation. After taking into consideration the views expressed by

different Departments within the Corporation and examining the legal

opinion obtained by the MCD, it was proposed as below:-

"1. Xxx

2. In cases, where the leased shop of MCD have been rented out without seeking permission of MCD for a period of more than 10 years, alternative plots of the size 10‟x15‟ (3 mtrs. x 4.5 mtrs.) may be allotted jointly in the name of the lessees and the tenants having 50% share each on lease hold basis.

3. In other cases, where the original lessees are carrying out their business themselves and who have not been allotted any other plot in Bawana, an alternative plot of the size 10‟ x 15 „ (3 mtrs. x 4.5 mtrs.) may be allotted to them on lease hold basis.

4. xxx

5. xxx"

5. The grievance of the petitioners is that by virtue of Resolution No.240,

the tenants of the shops have been allotted 50% undivided share in the

plots allotted by MCD in Sanjay Gandhi Transport Nagar, which is

impermissible as they cannot be equated with the petitioners, who are the

owners of the properties from where they are being relocated.

6. Learned counsel for respondent No.1/MCD seeks to justify the

aforesaid decision by contending that such of the lessees of the MCD, who

had leased out their shops for a period of over 10 years, without seeking

prior permission from MCD had been allotted alternative plots jointly with

the tenants, solely on the ground that the said tenancies were created

illegally without informing the Corporation and further, in view of the fact

that the occupants of the shops, who were tenants under the lessees, had

been carrying on their business from the said shops for the past 10-40

years. She explains that Resolution No.240 came to be passed in view of

the fact that the Corporation was of the opinion that the tenants were also

entitled to compensation on the same pattern as other tenants are entitled

to compensation under the Land Acquisition Act, whereunder old tenants,

staying in the premises to be acquired for a period of 30-40 years, are

normally offered 60-70% monetary compensation by the Land Acquisition

Collector and further, the aforesaid manner of apportionment of

compensation between landlords and tenants has been examined and upheld

in various decisions of the Supreme Court and the High Court.

7. The Court has heard both the sides and considered their respective

submissions. Resolution No.240 dated 14.10.2009 as also the letter dated

20.08.2009 issued by the Commissioner, MCD have also been carefully

examined. A perusal of the letter dated 20.08.2009 issued by the

Commissioner, MCD reveals that before taking a decision as to the manner

of offering compensation to affected persons to be rehabilitated on account

of execution of the subject project, the views of various Departments

including the Land & Estate Department and that of the Director, Sanjay

Gandhi Transport Nagar were obtained. However, having received divergent

views from the Departments as also the members of the Standing

Committee, a legal opinion was obtained from the Standing Counsel, MCD.

Apart from obtaining a legal opinion and considering the divergent views of

the Departments within the Corporation, notice was also taken of the

observation made by the Lt. Governor, Govt. of NCT of Delhi, that was to the

effect that the Corporation might have to rehabilitate both, the lessees as

also the shopkeepers, namely, the tenants since the latter had remained in

occupation of the shops for a period spanning over 20-40 years.

8. At the time of passing Resolution No.240, MCD was mindful of the fact

that while laying down the rehabilitation policy, the main object was to

rehabilitate the affected persons, which included both, the lessees as also

the tenants in occupation of the shops. The existing policy of the

Government of India for rehabilitation of those affected by such projects was

considered by the respondent No.1/MCD. As per the aforesaid policy of the

Government of India, it was prescribed that in case of allotment in lieu of the

acquired shops, the persons doing business, whether in the capacity of

owners of the land/shop or as a tenant, would be considered eligible for

rehabilitation. What weighed finally with the respondent No.1/MCD was its

apprehension that it might be called upon to compensate/rehabilitate both,

the lessees and the tenants and to overcome the aforesaid financial liability,

the Corporation decided to go ahead with the proposal to apportion the total

compensation between the lessees and the tenants in the ratio of 50% each

in all such cases, where tenants had been occupying the shops continuously

for a period of over 10 years. Consequently, the respondent No.1/MCD

decided to make allotments of plots measuring 10‟ x 15‟ at Sanjay Gandhi

Transport Nagar jointly in the names of the lessees and the tenants, while

apportioning their shares to the extent of 50% each on leasehold basis.

9. The inherent fallacy of the aforesaid decision taken by the

respondent/MCD is twofold. Firstly, respondent No.1/MCD erred in arriving

at a conclusion that tenancies had been created by the petitioners/lessees

without seeking prior permission from respondent No.1/MCD. It is pertinent

to note that originally, the shops in question had been leased out by the

Land and Development Officer, Government of India to lessees like the

petitioners herein by executing lease deeds for a period of 99 years. A

perusal of the covenants incorporated in the said lease deed reveals that one

of the embargoes placed on a lessee was as below:-

"(b) The Lessee shall before any assignment or transfer of the said premises hereby demised or any part thereof obtain from the Lessor approval in writing of the said assignment or transfer and all such assignees and transferees and the heirs of the Lessee shall be bound by all the covenants and conditions herein contained and be answerable in all respects therefor.

(c) The Lessee can transfer the land after obtaining the permission of the Lessor aforesaid and the Lessor will not share any unearned increment in the value of the land (being the difference in the premium paid by him to the Lessor and the market value of the land then prevailing) for permitting such transfer. The Lessor will, however, be entitled to claim and recover the unearned increment in the value of land in the event of any subsequent transfer of the land by a transferee the amount so to be recovered being 50% of the unearned increment in the value of the land."

10. A perusal of the aforesaid covenants reveals that only if a lessee

proposed to assign/transfer the demised premises or any part thereof, was a

written approval required from the lessor. However, no such stipulation had

been imposed in the lease deed if a lessee proposed to let out the demised

premises to a tenant. In other words, a tenant cannot be treated as an

assignee/transferee under the lease deed as understood by the respondent

No.1/MCD.

11. The second flaw in the decision making process of the respondent

No.1/MCD was to equate the possessory rights of a tenant with the

ownership right of a lessee which is incomprehensible and unjustified, apart

from being contrary to the settled law that a tenant shall always remain a

tenant. Furthermore, the decision to rehabilitate the lessees and the

occupants of the shops by allotting a single plot and apportioning the same

between them in the ratio of 50% each, is also misconceived. This would

result in saddling a tenant with a landlord and vice-versa, in perpetuity by

treating them on the same footing. If the respondent No.1/MCD was keen

to compensate/rehabilitate both, the lessees and the tenants, it ought to

have laid down a policy in such a manner that relief of monetary

compensation/compensation by way of allotment of plots could have been

granted independently to both the parties, i.e., the lessees and the tenants,

without insisting that they be clubbed for grant of the said relief.

12. Counsels for the respondent No.2/tenants have drawn the

attention of this Court to the decision taken by respondent No.1/MCD in its

meeting held on 01.02.2005 regarding alternative allotment for the

displaced persons of the DMRC project at Tilak Marg and Prem Nagar, Delhi,

to submit that such persons, who had been displaced on account of

demolition of the properties falling on land acquired by the government for

being placed at the disposal of DMRC at Tilak Marg and Prem Nagar, were

compensated in both, monetary terms as also by way of allotment of

alternative shops. A perusal of the documents handed over by the counsels

for the respondent No.2/tenants in support of the aforesaid submission does

not clarify as to whether alternative allotments were made in favour of both,

the owners and occupants or only one of them. However, it is an undisputed

position that the allotments that had been made were not joint, as done by

respondent No.1/MCD in the present case.

13. In view of the aforesaid discussion, the inevitable conclusion is

that the Resolution No.240 dated 14.10.2009 passed by respondent

No.1/MCD, insofar as it relates to rehabilitation of tenants operating their

business from the shops of the petitioners/lessees for the past 20-40 years,

is unsustainable in law and therefore liable to be struck down. As a result,

that part of the aforesaid Resolution, wherein respondent No.1/MCD had

decided that in cases where leased shops of the MCD had been rented out

for a period of more than 10 years, without seeking permission of the

Corporation, alternative plots measuring 10‟ x 15‟ would be allotted jointly in

the names of the lessees and the tenants having 50% share each on

leasehold basis, is set aside and quashed and it is directed that the aforesaid

issue No.2, as framed in the impugned Resolution No.240 of the MCD shall

be reconsidered by the respondent No.1/MCD while taking into consideration

the guidelines laid down by the government agencies in similar cases of

rehabilitation and by examining the provisions of the Land Acquisition Act

and the judicial pronouncements on this aspect. Thereafter, a fresh decision

shall be taken by the respondent No.1/MCD within a period of eight weeks

from today, under written intimation to the petitioners as also to the

respondent No.2/tenants.

The petitions are disposed of while leaving the parties to bear their

own costs.

                                                     (HIMA KOHLI)
MARCH 21, 2012                                          JUDGE
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