Delhi High Court
Municipal Corp. Of Delhi vs Dilip Kumar Budhiraja on 7 May, 2012
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 7th May, 2012
LPA NO.524/2010
+ MUNICIPAL CORP. OF DELHI ..... Appellant
Through: Ms. Madhu Tewatia with Ms. Sidhi
Arora, Adv.
versus
DILIP KUMAR BUDHIRAJA ..... Respondent
Through: Mr. Nitin Narang, Adv.
CORAM :
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J
1. This Intra-Court appeal impugns the order dated 6th May, 2010 of the
learned Single Judge allowing W.P.(C) No.11959/2009 preferred by the
respondent, by directing the appellant MCD to allot a plot in Ghogha Dairy
Project, "based on the first inspection report". Notice of the appeal was
issued and the operation of the order of the learned Single Judge stayed. We
have heard the counsels for the parties finally at this stage.
2. The respondent was an applicant for a dairy plot in the Ghogha Dairy
Project and claims to have deposited a sum of Rs.1,20,000 with the appellant
MCD at the time of making application in the year 2005. He filed the writ
petition claiming that no plot was allotted to him, though he was challaned
for running a illegal dairy at his existing site. He thus sought a direction for
allotment of plot ad measuring 96 sq. mtr. applied for by him.
3. The appellant MCD filed a counter affidavit to the writ petition
pleading that the Ghogha Dairy colony was developed pursuant to the
directions in Public Interest Litigation (PIL) being W.P.(C) No.3791/2000
titled Common Cause Vs. Union of India, highlighting menace of stray
cattle on Delhi roads. It was further pleaded that though in the first
phase1373 persons had booked the plots in the proposed colony but there
were complaints of irregularities in allotment of plots and which led this
Court, in the PIL supra to appoint a Committee to physically verify the
dairies which the applicants claimed to be operating, in as much as running of
dairy business was to be the sole criteria for allotment of plots in the
proposed Ghogha Dairy Colony. It was further pleaded that upon such
verification, only 535 out of the 1373 applicants were found eligible for
allotment and accordingly the allotments earlier made in favour of the
remaining 838 applicants who were not found running dairies, were cancelled
and intimation thereof given including by public notices. It was further
pleaded that during the said verification, the respondent was not found
running any dairy. Dispute was also raised as to the challans claimed by the
respondent.
4. The learned Single Judge, in the order impugned in this appeal, has
merely observed that there was no reason to disbelieve the report of the first
inspection pursuant to which allotment was made in favour of the respondent
and accordingly issued direction for allotment of plot.
5. We are however unable to agree with the course adopted by the learned
Single Judge. As aforesaid, the entire Ghogha Dairy Colony/Project was
developed pursuant to the directions in the PIL aforesaid. It is evident that,
after the allotment of the plot in favour of the respondent in pursuance to the
inspection, the Division Bench of this Court had directed a fresh physical
verification and allotments already made, of only those to be confirmed, who
on such physical verification were found to be running dairies. During the
said physical verification, according to the appellant MCD the respondent
was not found running a dairy and accordingly the allotment in his favour
was cancelled as for back as in the year 2007. The said aspect of the matter
has not been considered at all by the learned Single Judge. In view thereof
the impugned order cannot be sustained and has to be necessarily set aside.
6. The counsel for the respondent has however invited our attention to
para 2.14 of the memorandum of appeal where under the heading
"Verification done consequent to court orders" it is mentioned, "Respondent
was not amongst the bogus allottee". On the basis thereof it is argued that if
the respondent was not amongst the bogus allottees, the allotment in his
favour could not have been cancelled and the leaned Single Judge has rightly
allowed the writ petition.
7. The counsel for the appellant MCD is unable to explain the aforesaid.
8. We have minutely combed the counter affidavit filed by the appellant
MCD to the writ petition, where it is categorically stated that during the
physical verification by the Committee constituted by the PIL Bench of this
Court, the respondent was not found running a dairy and was thus found to be
not fulfilling the criteria for allotment. We do not find any admission in the
said counter affidavit that the respondent was not amongst the bogus
allottees.
9. However in view of the ambiguity aforesaid, while setting aside the
order of the learned Single Judge, we dispose of the writ petition filed by the
respondent and this appeal by directing the appellant MCD to again assess
the claim of the respondent for a dairy plot, within two months of today and
if find the respondent to be eligible for allotment of a dairy plot, to allot such
a plot to him within further two months thereafter, on compliance of all the
formalities including payment of charges in accordance with the current rate
by the respondent. We have directed payment at current rate to the
respondent because of the long delay by the respondent in approaching this
Court. As aforesaid, the applicants found genuine by the Committee aforesaid
were made allotment in the year 2007 itself and the respondent filed the writ
petition only in the year 2010. However if the respondent is not found
eligible, the appellant MCD shall pass a reasoned speaking order and also
refund the money deposited by the respondent together with interest if any, in
accordance with the policy in this regard. The respondent to, within 15 days
hereof appear before the concerned officers of the appellant MCD with all his
documents.
No order as to costs.
RAJIV SAHAI ENDLAW, J
ACTING CHIEF JUSTICE
MAY 7, 2012/pp
