Municipal Corporation Of Delhi vs Sadhna Grover & Anr.
2015 Latest Caselaw 2296 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of decision: 18th March, 2015

+ LPA 240/2006 & CM No.12177/2012 (of R-1 for dismissal of appeal)

       MUNICIPAL CORPORATION OF DELHI             ..... Appellant
                   Through: Ms. Mini Pushkarna and Mr.
                            Siddhartha Nagpal, Advs.

                                 Versus

       SADHNA GROVER & ANR.                  ..... Respondents
                  Through: Mr. Hameed S. Shaikh, Adv. for R-1.
                            Mr. Pawan Mathur and Mr.
                            Himanshu Gupta, Advs. for R-
                            2/DDA.

CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J.

1. This intra court appeal impugns the orders dated 22nd November,

2005 and 30th November, 2005 of the learned Single Judge of this Court in

W.P.(C) No.6827/1999 filed by the respondent No.1 [respondent No.2 is the

Delhi Development Authority (DDA)]. Vide order dated 22nd November,

2005, the appellant Municipal Corporation of Delhi (MCD) was directed to

allot to the respondent No.1/writ petitioner on license basis, 200 sq. yrds. of

land for running a coal depot. Vide subsequent order dated 30th November,

2005, the application of the appellant MCD for recall / modification of the

order dated 22nd November, 2005 was dismissed.

2. The respondent No.1/writ petitioner filed the writ petition from which

this appeal arises, pleading:

(i) that her father-in-law Sh. Madan Lal Grover was, vide letter

dated 25th March, 1969 of the appellant MCD, allotted a plot / site

admeasuring 200 sq. yrds. neighbouring F/437-B, New Rajinder

Nagar, New Delhi, on tehbazari basis at Rs.20/- per month, for use

as a coal depot;

(ii) that the said site was given to Sh. Madan Lal Grover at the time

of widening of Shankar Road in lieu of his coal depot site at Shankar

Road;

(iii) that the said Sh. Madan Lal Grover constructed an office on

and a boundary wall around the said coal depot plot and obtained

electricity and water connection at the said site;

(iv) that Sh. Madan Lal Grover died on 19th July, 1979 and

thereafter the respondent No.1/writ petitioner was paying the

tehbazari / license fee;

(v) that on 26th October, 1999, DDA demolished the existing

structure on the said plot / site, without notice and opportunity of

hearing and was also not allowing the respondent No.1/writ petitioner

from doing business on the said plot / site.

Accordingly, the reliefs of, (a) restraining the DDA and MCD

from dispossessing the respondent No.1/writ petitioner from the said

land; and, (b) of a direction to the DDA/MCD to restore the structure

demolished illegally, were claimed in the writ petition.

3. DDA filed a counter affidavit in the writ petition inter alia stating, (I)

that the respondent No.1/writ petitioner was at best a licensee with respect

to the said plot / site and the license in her favour had also not been

validated beyond 31st December, 1989 and in any case such license did not

confer any right, title or interest in the respondent No.1/writ petitioner with

respect to the said plot / site; (II) that the said land belongs to the

Government of India and was transferred to the DDA vide letter dated 12 th

May, 1984 of the Department of Rehabilitation (Settlement Wing); (III) that

finding the plot / site to be encroached upon, the encroachment was

removed on 26th October, 1999 and DDA had put up its own fencing around

the site; (IV) that MCD had got nothing to do with the said land, which

belonged to the Ministry of Rehabilitation and since 12th May, 1984 was

under the management and control of DDA.

4. Vide ad-interim order dated 19th November, 1999 in the writ petition,

status quo with respect to the plot of land was directed to be maintained.

Vide order dated 5th August, 2004, the officials of the DDA and MCD were

directed to find out, as to how the MCD had given a tehbazari right with

respect to the subject plot / site, if the same belonged to DDA and to also

find out, whether the subject land actually belonged to the DDA. On 1 st

October, 2004, the learned Single Judge was informed, (A) that there is no

policy of MCD to issue tehbazari for coal depots, much less for sites

admeasuring 200 sq. yrds.; (B) that tehbazari sites are being allocated for an

area of 6' X 4'; (C) that no tehbazari was ever issued to Sh. Madan Lal

Grover. In view of the said stand of the appellant MCD, the counsel for the

DDA stated that it was not possible for the DDA to allot any alternative site

to the respondent No.1/writ petitioner. However, the learned Single Judge

in the order dated 1st October, 2004 observed that that the stand of the MCD

was at variance with the documents filed along with the writ petition which

showed that the Land and Estate Department of the MCD allotted a 200 sq.

yrds. site to the late Sh. Madan Lal Grover at a monthly fee of Rs.20/- on

tehbazari basis. Accordingly, MCD which till then had not filed any

counter affidavit to the writ petition was directed to file an affidavit.

5. The appellant MCD filed an affidavit dated 19th April, 2005 stating,

(i) that from the records, it appeared that Sh. Madan Lal Grover had been

selling coal at a site, near Shankar Road in the year 1966-69, similar to that

of tehbazari; (ii) that there was however no record that the Shankar Road

site was ever allotted by MCD to Sh. Madan Lal Grover; (iii) that from the

document filed by the respondent No.1/writ petitioner, it appeared that the

MCD had vide letter dated 25th March, 1969 permitted Sh. Madan Lal

Grover for a coal depot at a site adjacent to F/437-B in Rajender Nagar for

Rs.20/- per month; (iv) that however there was no record of the said leter in

the MCD files; (v) that the respondent No.1/writ petitioner had been

depositing tehbazari charges @ Rs.20/- per month with MCD; (vi) that there

was no record of any allotment in favour of respondent No.1/writ petitioner;

(vii) that tehbazari did not give any right or entitlement to any person on the

land belonging to MCD; (viii) that it was not clear from the record that on

what basis in 1969, late Sh. Madan Lal Grover was permitted to use the site

/ plot; (ix) that as per the prevalent policy of MCD, no land is to be utilized

for tehbazari as coal.

6. The learned Single Judge vide impugned order dated 22nd November,

2005 disposed of the writ petition with the direction aforesaid inter alia

observing, (a) that the affidavit of the MCD did not explain, as to why MCD

had on 1st October, 2004 taken a contrary stand from what was stated in the

affidavit; (b) that owing to the wrong stand taken by the MCD as recorded

in the order dated 1st October, 2004, DDA took a stand that the respondent

No.1/writ petitioner was not entitled to any alternate rehabilitation; (c) that

since MCD had put the predecessor of the respondent No.1/writ petitioner in

possession of site which did not belong to it and since the respondent

No.1/writ petitioner had been dispossessed therefrom by the DDA to whom

the land belonged and since MCD had obstructed an amicable resolution of

the dispute by taking a stand at variance with the documents issued by MCD

and had inspite of opportunity failed to explain the said conduct, MCD was

liable to allot, on license, 200 sq. yrds. of land to the respondent No.1/writ

petitioner for running a coal depot. It was further made clear in the order

that the MCD will not take a stand that being not a land owning agency,

could not allot a land. It was further observed that since it was MCD which

prevented DDA from giving alternative site to the respondent No.1/writ

petitioner, it was MCD's liability to identify a suitable land and hand over

the same to the respondent No.1/writ petitioner. A time of three months was

given to the MCD for the said purpose.

7. MCD filed an application being CM No.14906/2005 before the

learned Single Judge explaining the reason for non-appearance of its

arguing counsel on 22nd November, 2005 and further clarifying that there is

no record in the MCD that the subject plot / site was ever allotted by it,

though the respondent No.1/writ petitioner had filed documents in this

regard. Accordingly, recall / modification of the order dated 22 nd

November, 2005 was sought. However, the said application was dismissed

vide impugned order dated 30th November, 2005 recording that there was no

reason to recall / modify the order.

8. Notice of the appeal was issued and the appeal was admitted for

hearing on 31st March, 2009. The Additional Deputy Commissioner (Land

& Estate) of the appellant MCD appeared in the appeal on 31st March, 2009

and stated that in 1995, a policy decision was taken by the Delhi

Administration that neither fresh licenses would be issued for coal depots

nor would existing licenses be renewed. He also agreed that in view of the

said decision, all tehbazari sites where coal depots were being run were

required to be re-possessed. He however could not say, whether that was

actually being done or not. This Court in the order dated 31st March, 2009

in this appeal observed that either the respondent No.1/writ petitioner should

be permitted to operate the coal depot at the subject plot / site or as per the

policy decision, a uniform action must be taken where the functioning of

such coal depots is brought to an end and the land repossessed. It was

further observed that if the tehbazari right holders were entitled to carry on

alternative business instead of a coal depot at the same site, then respondent

No.1/writ petitioner must also get the same right, as there could be no pick

and choose policy.

9. In pursuance to the aforesaid order, an affidavit dated 30th April, 2009

was filed by the said Additional Deputy Commissioner (Land & Estate)

Department of the MCD inter alia stating that a decision had been taken to

repossess the tehbazari sites of all the coal depots which had been shut

down and on humanitarian ground allot alternative sites as per the policy to

all the coal depot holders and the said decision was under implementation.

It was also informed that there is a proposal for allotment of tehbazari sites

admeasuring 6'X4' to the erstwhile coal depot tehbazari holders.

10. DDA also filed an affidavit dated 4th May, 2009 of its Director

(Lands) stating that DDA does not allot plot for tehbazari nor does it allot

plots for coal depot.

11. Thereafter, from time to time the appeal was adjourned awaiting the

implementation of the decision aforesaid of the MCD and affidavits / status

reports filed by the MCD from time to time, reporting thereon.

12. The order dated 12th August, 2011 in the appeal records that a policy

had been framed for allotment of alternative tehbazari sites to the erstwhile

coal tehbazari holders; the counsel for the respondent No.1/writ petitioner

sought time to study the same.

13. The subsequent order dated 4th May, 2012 in the appeal inter alia

records that the policy which was informed to have been framed had not

been implemented for diverse reasons. MCD was again directed to file an

affidavit in this regard.

14. An affidavit dated 17th July, 2012 was filed in compliance therewith

inter alia stating that 42 sites were given on tehbazari license basis for coal

depots and out of which 31 had been retrieved, 8 sites were under litigation

and against 3 sites action was pending.

15. The order dated 12th July, 2013 in the appeal records that an

alternative site had been offered to the respondent No.1/writ petitioner in

Karol Bagh, New Delhi area to run any alternative trade permitted under the

tehbazari scheme; however the size of the plot would be 7' X 5'.

16. On 13th September, 2013 the counsels informed this Court that the

policy formed by the MCD for rehabilitating the erstwhile coal depot

tehbazari holders was under challenge by the respondent No.1/writ

petitioner in W.P.(C) No.3455/2012. Accordingly, this appeal was ordered

to be heard along with the said writ petition filed by the respondent

No.1/writ petitioner. However, vide order dated 7th October, 2013, finding

that the said policy was under challenge not only by the respondent

No.1/writ petitioner but also by several other persons and observing that it

would not be appropriate to hear this appeal along with the said batch of

writ petitions challenging the policy, this appeal was de-tagged.

17. A further status / compliance report dated 22nd November, 2013 was

filed by the MCD reporting on the status of the retrieval of the possession of

the other coal depots.

18. We heard the counsel for the appellant MCD and the counsel for the

respondent No.1/writ petitioner on 2nd March, 2015 and reserved judgment.

19. On enquiry, all counsels confirmed that the respondent No.1/writ

petitioner is not in possession of the subject plot / site. However, while the

counsel for the appellant MCD stated that the appellant MCD is in

possession of the said plot / site, the counsel for the respondent No.1/writ

petitioner stated that DDA had taken possession of the plot / site and is

currently in possession of the site.

20. The counsel for the appellant MCD drew our attention to the copy of

Resolution No.417 of the Meeting of the Standing Committee of the

appellant MCD held on 4th August, 2010. One of the proposals in the said

meeting was for formulating a policy regarding the Coal Depots which were

established on Municipal land for conducting business on the basis of

tehbazari granted by MCD. It was recorded that the Food & Civil Supply

Department of the Govt. of NCT of Delhi had revoked the coal depot

licenses in the year 1995 and hence the sites were being retrieved to be put

to more purposeful use of the nearby community / locality. It was decided

to offer the erstwhile tehbazari holders of the said coal depots, tehbazari

sites measuring 7' X 5' preferably in area near the erstwhile coal depot sites,

failing which in the same zone or nearby zones. Attention was next invited

to the Circular No.AO/CL&EC/2011/87 dated 6th July, 2011 of the Central

Licensing & Enforcement Cell of MCD in pursuance to the decision taken

in the meeting aforesaid and laying down the policy in this regard. As per

the said policy, the erstwhile coal depot tehbazari holders or their legal

successors are to be offered tehbazari sites measuring 7' X 5' preferably in

areas near their erstwhile coal depot sites, failing which in the same zone or

nearby zones. The counsel for the appellant MCD further informs that it is

the said Circular dated 6th July, 2011 which is under challenged in the other

writ petition filed by the respondent No.1/writ petitioner and in other

petitions connected therewith, filed by other erstwhile coal depot tehbazari

holders. Attention is also invited to the corrigendum dated 30th January,

2013 to the Circular dated 6th July, 2011; however the same is not relevant

for our purposes.

21. The counsel for the respondent No.1/writ petitioner contended that

the land adjacent to Shankar Road where Sh. Madan Lal Grover aforesaid

was originally running the coal depot, was allotted to him as a displaced

person and the subject plot / site was allotted in lieu thereof. However,

upon enquiry, whether there was any allotment in lieu of the claim for

compensation under the Displaced Persons (Compensation and

Rehabilitation) Act, 1954, the counsel fairly states that it was not so. We

may in this regard notice that the claim of the respondent No.1/writ

petitioner in the writ petition from which this appeal arises also was only of

merely being a tehbazari holder and the construction on the tehbazari site

having been demolished without following the due process of law and the

respondent No.1/writ petitioner in the writ petition also had not put any

higher claim to the subject plot / site. The counsel for the respondent

No.1/writ petitioner has otherwise highlighted the false stand taken by the

appellant MCD before the learned Single Judge.

22. We have considered the matter in the light of the contention raised

and the history of these proceedings as noted hereinabove.

23. Though it is quite evident from the orders made from time to time in

the appeal that the direction issued by the learned Single Judge to the

appellant MCD to allot a plot of land admeasuring 200 sq. yrds. on

tehbazari basis to the respondent No.1/writ petitioner has been given a go-

bye and it has been held that the respondent No.1/writ petitioner is entitled

to the same treatment as the other erstwhile coal depot tehbazari holders but

we may also observe that we are unable to agree with the reasoning given

by the learned Single Judge for issuing the direction to the appellant MCD

to allot plot admeasuring 200 sq. yrds. to the respondent No.1/writ

petitioner, even if on licence basis. The learned Single Judge appears to

have been swayed into passing such a direction, dismayed at the false stand

purportedly taken by the official of the MCD in the course of the proceeding

in the writ petition. However, the stand, even if false, taken by some

officials of the MCD also does not justify conferment of a benefit of

allotment of land to the respondent No.1/writ petitioner, if otherwise not

entitled to. We may also observe that the stand taken by the officials of the

MCD of denial of grant of tehbazari rights to the respondent No.1/writ

petitioner / her predecessor, was in the face of no records of such grant

being available in the MCD. It cannot thus really be said that the stand was

false; perhaps it was not properly worded.

24. It cannot be lost sight of that the predecessor of the respondent

No.1/writ petitioner was but a tehbazari holder. A tehbazari holder is

merely a licensee, entitled only to use the land for the purpose licensed and

has no right, title or interest in the land. It cannot also be lost sight of that

the said tehbazari was expressly for running a coal depot. It is not in

dispute that the business of running of coal depot came to an end in the year

1995 and beyond which it was not permissible in law to run a coal depot on

the said land. In our opinion, the tehbazari of the respondent No.1/writ

petitioner thus came to an end in 1995 itself and the respondent No.1/writ

petitioner has not pleaded any right in law to continue in use of the said land

for other purpose or to get any alternative land. The right of the respondent

No.1/writ petitioner could at best be of rehabilitation in accordance with the

policy, if any in this regard, as has rightly been observed in the orders

aforesaid in this appeal. Reference may also be made to our judgment in

Saptagiri Restaurant Vs. Airports Authority of India

MANU/DE/2575/2014 where, on a conspectus of case law it was held that

owing to Section 64 of Indian Easements Act, 1882, a licencee, if evicted,

even though grounds for revocation of licence do not exist, or is forcefully

evicted, his only remedy is to recover compensation from grantor and not to

resume occupation.

25. Thus, the order dated 22nd November, 2005 of the learned Single

Judge impugned in this appeal cannot stand and is set aside.

26. As far as the right of the respondent No.1/writ petitioner for

rehabilitation is concerned, a policy in this regard has already been framed

under the directions in this appeal from time to time. However, now the

respondent No.1/writ petitioner and others similarly placed as the

respondent No.1/writ petitioner are not satisfied with the said policy and

have challenged the same in the other writ petitions aforesaid.

27. Thus, while allowing this appeal, we observe that nothing contained

herein would affect the rights of the respondent No.1/writ petitioner in the

other writ petition preferred by her, challenging the Circular / policy dated

6th July, 2011.

No costs.

CHIEF JUSTICE

RAJIV SAHAI ENDLAW, J.

MARCH 18, 2015 'bs'