Delhi Development Authority vs Shyam Lal
2016 Latest Caselaw 4702 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RSA No.379/2014

%                                                         21st July, 2016

DELHI DEVELOPMENT AUTHORITY                       ....Appellant
                Through: Mr. Sanjeev Rajpal, Adv.

                          versus

SHYAM LAL                                                 ..... Respondent

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This Regular Second Appeal under Section 100 of the Code of Civil

Procedure, 1908 (CPC) is filed against the two concurrent Judgments of the courts

below; of the Trial Court dated 28.7.2010 and the First Appellate Court dated

14.8.2014; by which the courts below have decreed the suit of the

respondent/plaintiff by directing the appellant to allot an alternative premises to

the respondent/plaintiff as per the policy of the appellant entitling alternative

premises to jhuggi (hutment) dwellers whose jhuggis are demolished.

2. A reference to the judgments of the courts below shows that the case

of the appellant/defendant was that alternative premises were to be allotted to

persons who are found to be in possession of jhuggis/hutment prior to 31.12.1998,

but since respondent/plaintiff had a ration card issued in the year 1999,

respondent/plaintiff hence was not covered under the policy of alternative

allotment.

3. The judgments of the courts below show that the respondent/plaintiff

proved on record various documents of his being in occupation of the

jhuggi/hutment prior to 1998 and which documents are filed and proved on record

exhibited as ration card Ex.PW-1/1, identity card Ex.PW-1/2, token issued by the

Delhi Administration as Ex.PW-1/3, electoral list for the years 1994 and 1999 as

Ex.PW-1/4 and Ex.PW-1/5.

4. Trial court has observed that the date of issuing of ration card is

8.9.1998 i.e before 31.12.1998 and the electoral list Ex.PW1/5 is of the year 1994.

The trial court as well as the first appellate court has then referred to the fact that

when the actual survey Ex.DW1/2 was carried out by the appellant itself,

respondent's jhuggi was found at the spot and the name of the respondent/plaintiff

in the survey appeared at serial no.354, however, the hutment of the

respondent/plaintiff was found to be locked. Trial court has therefore concluded

that merely because the hutment of the respondent/plaintiff is locked does not

mean that hutment did not exist prior to 31.12.1998. Accordingly, the courts

below have held that the respondent/plaintiff is entitled to alternative allotment.

5. The first appellate court has correctly and exhaustively dealt with the

issues in paras 8 to 10 of the impugned judgment and these paras read as under:-

"8. To appreciate the arguments of the Ld. Counsels for the parties, a look has to be made to the judgment of the trial court as well as the evidence on record. If the judgment of the trial court is pursed, it is noticed that the trial court after examining the documents Ex.PW-1/1, which is copy of ration card and Ex.PW-1/5 has come to the conclusion that respondent/plaintiff Shyam Lal was a resident of the suit property. Further, making reference to Ex.DW-1/1, it has taken the view that the persons who were squatting prior to 1998 were to be given alternative accommodation. Thus, it has taken the view that respondent/plaintiff was able to show that he was squatting in the suit property prior to 1998. That being so, he was held to be eligible for alternative plot.

9. Coming to the testimony of Shri Shyam Lal/PW-1, it is noticed that he has got exhibited documents such as ration card Ex.PW-1/1, identity card Ex.PW-1/2, token issued by Delhi Administration Ex.PW-1/3, electoral list Ex.PW-1/4 and Ex.PW-1/5 of the year 1994. There has been nothing in the cross-examination to controvert these documents.

10. Shri Kanhiya Lal Mehto, Assistant Director, DW-1 has brought on record Ex.DW-1/1, which is a letter written by Government of India, Ministry of Urban Development & Poverty Alleviation to Vice Chairman, Delhi Development Authority, where in para-6 of the letter, it has been stated that 18 square meters to pre-1990 squatters and 12.5 square meters to post-1990 but pre-1998 squatters have to be allotted. Ex.DW-1/2 is a survey where the name of respondent/plaintiff appears at serial no. 354. It has been stated in the affidavit by his witness that the plaintiff was found at site and the jhuggi was locked during the survey conducted. However, when this witness has been cross-examined, he has stated that he did not conduct the survey. He has further stated that at the time of the survey, the name of the person was mentioned in the survey list who was found present and jhuggi number was mentioned against the person who was not found present. Thus, from his cross- examination it comes out that though jhuggi of the respondent/plaintiff was found locked, but the survey list shows the existence of his jhuggi. Even if, he was not found at the time of survey, the fact remains that he was having jhuggi on the date of survey. His non-presence at the time of survey cannot be considered that he was not residing in the jhuggy, which consequently does not effect the claim of his alternative site. Thus, from the testimony of Shri Shyam Lal, PW-1 as well as Shri Kanhiya Lal Mehto, DW-1, it comes out that the respondent/plaintiff was residing over the suit property prior to 1998 and was eligible for alternative accomodation."

6. In my opinion, no illegality or perversity is found in the findings and

conclusions of the courts below and no substantial question of law arises for this

second appeal to be entertained under Section 100 CPC.

7. Counsel for the appellant then sought to argue that alternative

allotment was not a matter of right as stated in para 2 of the policy and allotment

was to be on licence basis only, however, firstly it is noted that no copy of written

statement has been filed by the appellant/defendant in this Court and counsel for

the appellant/defendant concedes that the defence/argument now raised is not

found in the written statement. Obviously, since this defence was not found in the

written statement of the appellant/defendant, the courts below have not touched

this aspect. In any case even if I look on this argument, the argument is totally

frivolous to say the least because the issue that the allotment is not a matter of

right is also conditioned by the fact that the policy itself shows that the allotment

will take place in case the hutment/jhuggi dweller is found to exist at site prior to

31.12.1998. Respondent/plaintiff was found to exist in the hutment prior to

31.12.1998, and therefore, I fail to understand as to how the appellant/defendant

can claim a pick and choose policy that it will not allot the alternative site to the

respondent/plaintiff merely because the policy states that allotment is not a matter

of right when all other entitled hutment dwellers have been allotted alternative

sites. Obviously, this argument is frivolous, and for which reason this stand was

never raised by the appellant and hence the same has not been discussed by the

courts below. Further, I also fail to understand the argument that allotment of

alternative site is to be on licence basis only, because surely if the allotment has to

be on licence basis the same should be done by the appellant on licence basis only

because it is not as if the judgments of the courts below direct giving of

ownership rights to the respondent/plaintiff and the judgments of the courts below

only direct allotment of alternative site to the respondent/plaintiff in accordance

with the policy.

8. Dismissed.

JULY 21, 2016                                             VALMIKI J. MEHTA, J
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