Avtar Goods Carriers vs Mcd And Ors
2016 Latest Caselaw 6646 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI
%                     Judgment reserved on : 20.10.2016
                     Judgment delivered on : 25.10.2016.

+       W.P.(C) 7100/2010
        AVTAR GOODS CARRIERS
                                                          ..... Petitioner
                         Through     Mr.Sachin Chopra and Mr. Ankit
                                     Malhotra, Advocates.

                         versus

        MCD AND ORS
                                                        ..... Respondents
                         Through     Mr.Sudhir Nandrajog, Sr. Adv. with
                                     Mr. Ajay Arora and Mr. Kapil Datta,
                                     Advocate for R-1.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 The petitioner M/s Avtar Good Carriers was a partnership firm

carrying on its business of transportation. Gopal Singh had been allotted

shop No.9 at New Qutab Road by the L & DO vide a lease deed dated

26.07.1962 for a period of 99 years. This firm was carrying on its transport

business since the year 1975. The proposal was mooted in the year 1976.

On 20.08.1986, a Scheme/Policy was framed by the respondent/Municipal

Corporation of Delhi for allotments of plots in Sanjay Gandhi Transport

Nagar (hereinafter referred to as the „SGTN‟) at G.T. Road, Badli. The

object was to decongest the city by curtailing the movement of trucks and

also by shifting workshops and godown in the outskirts of the city. The

project however could not take off. It was only in October, 1993 that the

DDA transferred about 161 acres of land for the purposes of setting up this

transport nagar. However, its approval was received in October, 1983. The

project was to be executed on a „no profit and no loss basis‟. Gopal Singh

expired and thereafter his leasehold rights got substituted in the name of

Ranjit Kaur (present petitioner) the daughter-in-law of Gopal Singh along

with her other sons.

2 A survey was conducted in 1986. This survey had been conducted

with the object to verify whether the applicant was still functioning as a

transport business from Shop No.9, New Qutab Road which had originally

been allotted to Gopal Singh. On 27.12.1986, the petitioner was allotted plot

No. BG-310, SGTN. However on 30.11.2007, the Corporation informed the

petitioner that plot No. BG-310 had been de-notified due to encroachment

and the possession of the same could not be given. Once again a draw of lots

was held and the petitioner was allotted BG-5, SGTN. On 12.06.2009, the

petitioner gave an undertaking to stop the trade at the existing site and

moved to the allotted site at BG-5, SGTN. The petitioner had also made an

application for construction in the property but her building plan was

rejected by the Executive Engineer on 21.06.2009. However site inspection

had revealed that from shop No.9, the transport business of Mahender Good

Carriers was still been run. Show cause notice dated 18.06.2010 was issued

to the petitioner. On 12.10.2010, the petitioner was directed to vacate the

premises and handover its vacant possession to the respondents.

3 It is this order dated 12.10.2010 which is the subject matter of

challenge before this Court.

4 Contention of the petitioner is that M/s Avtar Good Carriers which

was the original firm was engaged in the business of transport since the year

1975. A huge capital was invested in establishing the said business. After

the death of the original allottee Gopal Singh, the names of Ranjeet Kaur and

her sons stood substituted. There is no quarrel on this proposition.

Vehement contention of the learned counsel for the petitioner is that

although BG-5 at SGTN had been admittedly allotted to the petitioner but

the physical possession of the same has never been taken over by the

petitioner. Thus the show cause notice issued to her is bad as in the absence

of possession of BG-5 which had been allotted to the petitioner at SGTN, the

question of her vacating shop No. 9 at New Qutab Road did not arise as he

could not possibly shift his established business to any place. Vehement

submission is that the petitioner has paid for two plots i.e. firstly at the time

when the lease deed was executed with the L & DO which was in the year

1962 when the petitioner had admittedly paid a sum of Rs.3,287/-. This was

a 99 year old lease. This could not have been over-ridden by a Resolution of

the Department. A Resolution would not have the same sanctity as that of a

registered lease deed; the Resolution could not override this lease deed.

Additional submission being that even for the plot at SGTN, a sum of

Rs.4,36,953/- has been paid by the petitioner; this is a separate and distinct

transaction. The contention of the respondent that the petitioner should

vacate the instant site i.e. shop No. 9, New Qutab Road is not as per the

Policy/Resolution of 1987; the Resolution dated 12.01.1987 had only

presupposed that the transport business at New Qutab Road should be

stopped by the party; the separate allotment on payment of the plot at SGTN

had no connection with the petitioner having to give up her rights at New

Qutab Road. Another argument canvassed by the learned counsel for the

petitioner is that the Scheme is wholly discriminatory. The persons who

have leasehold rights have been targeted but those who are having freehold

properties have been saved; this was also not a part of the Resolution.

Submission being that Clause 7 (f) of the aforenoted Policy which has been

heavily relied upon by the petitioner does not come to their aid as reference

under Clause 7 (f) is applicable to Government land/public premises and thus

if at all the provisions of the Public Premises (Eviction of Unauthorized

Occupants) Act, 1971 would apply, the act of the respondents asking the

petitioner to vacate the plot in a situation when the alternate plot at SGTN

has also not been handed over to them is clearly a misunderstanding and

fallacious reading of the Resolution dated 12.01.1987. The act of the

respondent being bad, the impugned notice is liable to be set aside.

5 Counter affidavit and the stand of the respondent have been perused.

The submission of the respondent which is borne out not only from the

counter affidavit but also from his line of argument is that the

Policy/Resolution dated 12.01.1987 had been formulated to decongest the

city and by shifting of the transport business at New Qutab Road to SGTN;

alternate plots were being allotted to those persons but in lieu of these

alternate plots, they had to give their existing rights at New Qutab Road.

Additional submission being that the physical possession of the alternate site

at BG-5, SGTN has already been given to the petitioner which was on

31.07.2009 and this document of possession has been duly signed by the

petitioner. The petitioner had in fact also moved an application seeking

construction of her building at the site and had the possession not been given

to her, the question of construction at site would not have arisen. Attention

has been drawn to Annexure P-13 dated 04.07.2010 which is a document

rejecting the building plans of the petitioner. Submission of the learned

senior counsel for the respondent is that this petition has been filed on

20.10.2010 and the petitioner has concealed this material fact. She has

concealed the fact that she has already received possession of the alternate

plot at BG-5, SGTN on 31.07.2009; she has also concealed the fact that she

had moved an application seeking a sanction of her building plan at the

aforenoted site which had been rejected on 04.07.2010. It is pointed out that

these documents have been filed by the petitioner herself and this is a clear

case where the petitioner has not approached the Court with clean hands. No

discretion should be afforded to such a person who has concealed material

facts. To support this submission, learned senior counsel for the respondent

has placed reliance upon a judgment of the Apex Court reported as AIR 2010

SC 3823 Ritesh Tewari & Anr Vs. State of U.P. & Others; submission being

that a Court of equity when exercising its equitable jurisdiction must act so

as to prevent perpetration of a legal fraud and promote good faith and equity;

a petition which is not clear on facts and factual submissions are incorrect is

liable to be dismissed. Learned senior counsel for the respondent has also

pointed out that the entire pleadings of the present petition which includes

not only the averments in the petition but also the rejoinder filed by the

petitioner, there is no averments that the petitioner was entitled to retain both

the plots i.e. shop No. 9, New Qutab Road and the alternate plot at SGTN;

submission being that this argument has been canvassed only during the

course of hearing before this Court and had first emanated at the time when

the order dated 31.11.2014 was passed by this Court i.e. almost after four

years of filing of the petition as none of the earlier orders have reflected this

argument. This argument being beyond pleadings cannot be looked into.

6       Arguments have been heard. Record has been perused.


7       This Court notes that the aforenoted Policy which was Resolution

No.1137 of January, 1987 dated 12.01.1987 had been passed with the object

to take forward the earlier proposal of 1976 which was to decongest the city

and curtail the movement of trucks and workshops by shifting the transport

nagar from the city to outskirts i.e. SGTN. This development work was

taken on „no profit and no loss‟ basis. The cost of the land was

approximately Rs.500 per meter which includes not only the land allotment

price but also the development cost. A survey had been ordered to determine

as to who was in occupation and whether the said occupant was carrying on

the business at the original site before his application for an alternate plot

could be entertained. Clause 7 of the Policy clearly makes a reference to the

eligibility criteria. Clauses 7 (c) and (f) are relevant. They read as under:-

"(c) Applicants, qualified by criteria (a) and (b) above will all be given one plot each in lieu of their premises/area of usage measuring upto 500 sq. metres. For every 500 sq. metres additional area or fraction thereof under their usage, applicants will be entitled to an additional plot of applicable size. For the next one commercial price (which will be three times the reserve price) and for the remaining additional plots market price (which will be five times the reserve price).

(f) The allottee shall give undertaking that after allotment of plot they will discontinue their transport/allied business from the present site. Wherever the applicant/applicants are in occupation Govt. land/public premises, the same will be restored by them to the land owning Deptt./Authority"

8 A reading of the aforenoted Clauses makes it abundantly clear that the

persons who qualifies as an eligible applicant would be given a plot in lieu

of their premises which was originally allotted to them. Thereafter, the

allottee was to give an undertaking that he would discontinue the

transport/allied business from the original site. Whether the applicant was in

occupation of Government land/public premises, the same will be restored

by them to the land owning agency.

9 It is relevant to point out that the Government lands/public premises

were later on substituted by an amended Resolution and the words

„Government lands/public premises‟ were to be read as public land. This

was in terms of the decision of the Ad-hoc R.P. No.15 dated 24.11.1986.

Subsequent thereto, the petitioner had also furnished her affidavit dated

12.01.2009. This affidavit has been signed by the petitioner and para 3 of

the said affidavit reads herein as under:-

"That we shall stop our trade at the said premises and will move to allotted site at the earliest after delivery of possession of the plot No. GB-5, area 220 square meter. File No.220/40 in Sanjay Gandhi Transport Nagar, Delhi- 110042."

10 This deposition states that the trade at the original premises i.e. shop

No. 9, New Qutab Road will be stopped and the deponent would move to the

allotted site at the earliest which was BG-5, SGTN.

11 The submission of the petitioner that this was not an exchange

programs and the petitioner was entitled to retain both the plots is not borne

out. The Policy/Resolution dated 12.01.1987, at the cost of repetition, had

been formulated to decongest the city and to shift the existing transport

business from the city to SGTN. In the entire body of the petition, there is

not a single whisper by the petitioner that the Policy never meant that both

the sites could not be retained. Her whole writ petition is premised on her

submission that she has not been given possession of the allotted site at

SGTN. This submission is also incorrect. The affidavit/possession letter of

the petitioner dated 31.07.2009 (perused from the original record) clearly

shows that the possession of the aforenoted site has been handed over and

received by the petitioner. This is more abundantly clear from the

subsequent document dated 04.07.2010 wherein the application of the

petitioner seeking construction at site and sanction of her building plan stood

rejected on 04.07.2010 by the Executive Engineer. This document is

Annexure P-13. Both these documents are admitted. They are a part of the

record.

12 The aforenoted two documents also persuades this Court to hold that

the petitioner has not come to the Court with clean hands. He has concealed

material facts. Her case is bordered on her submission that the alternate plot

at BG-5, SGTN has not been handed over to her. This is belied by her

signatures on the possession letter dated 31.07.2009. This is further belied

by the document dated 04.07.2010 wherein her construction plan had been

rejected; meaning thereby that the possession of the plot had been handed

over to the petitioner and that is why and how she had applied for

construction at the site. This request had, however, been turned down. This

petition has been filed on 20.10.2010; none of these facts have been

disclosed in the petition. The petitioner has not come to the Court with clean

hands. Clauses 7 (c) & (f) of the aforenoted Policy read along with the

affidavit of the petitioner persuades this Court to hold that the petitioner had

been granted the alternate site at SGTN only in lieu of an alternate to her

earlier site at New Qutab Road from where they were carrying out their

transport business. The Policy did not in any manner envisage that the

petitioner was entitled to retain both the plots. In fact, at the cost of

repetition, this Court notes that this argument had surfaced for the first time

only after 2014; not only did it not emanate in the pleadings but it also did

not surface in the entire arguments/order-sheets which had taken place prior

to 13.11.2014. The predecessor Bench of this Court had in fact on

03.03.2011 noted his prima-facie opinion that the challenge to the Resolution

ought to have been made before availing of the allotment in SGTN and the

petitioner could not avail the benefit of and continue to enjoy both the

properties.

13      There is no merit in this writ petition. Dismissed.




                                                INDERMEET KAUR, J

OCTOBER 25, 2016
A