Ashok Anand vs Slum & Jj (Now Known As Dusib)
2017 Latest Caselaw 3220 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          RSA No. 104/2017

%                                                         13th July, 2017

ASHOK ANAND                                               ..... Appellant
                           Through:       Mr. Shashi Shankar, Advocate.
                           versus

SLUM & JJ (NOW KNOWN AS DUSIB)                               ..... Respondent

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 by the appellant/plaintiff

impugning the concurrent judgments of the courts below; of the trial

court dated 21.12.2013 and the first appellate court dated 28.10.2016;

by which the suit of the appellant/plaintiff has been dismissed. By the

suit the appellant/plaintiff has claimed the relief that the

respondent/defendant should allot not one alternative plot but should

allot two alternative plots inasmuch as the mother of the

appellant/plaintiff Smt. Kanta Devi had two barracks in her possession

being C-6, C-7, Kasturba Niketan Complex, Lajpat Nagar, New Delhi.

It is also pleaded that for construction of the alternative plots allotted

appellant/plaintiff had to be granted loan and till the loan is granted

and the appellant/plaintiff makes a construction on the alternative

plots, the appellant/plaintiff should not be evicted from the barracks C-

6 and C-7, Kasturba Niketan Complex, Lajpat Nagar, New Delhi.

2. The facts of the case are that the appellant/plaintiff filed

the subject suit pleading that his mother Smt. Kanta Devi had two

quarters C-6 and C-7, and with respect to this area there was a policy

of the government as a result of which persons in occupation were to

get alternative plots. It is the case of the appellant/plaintiff that since

the mother of the appellant/plaintiff had two barracks C-6 and C-7, the

offer of the respondent/defendant to allot only one plot is illegal and

two plots should be allotted. Reliance is placed upon para 8 of the

policy of the respondent/defendant and which document though is

marked A in the trial court, it is noted that this is an admitted document

being the policy of the respondent/defendant with respect to re-

allotment. It is also pleaded in the plaint that officials of the

respondent/defendant assured the appellant/plaintiff that

appellant/plaintiff will be given loan for construction of a house on the

alternative plots and since loan has not been granted the

appellant/plaintiff should not be evicted from the two barracks C-6 and

C-7 and with respect to which the respondent/defendant was going to

take coercive action.

3. The respondent/defendant contested the suit and pleaded

that as per the Clause 8 of the relevant policy, alternative allotment was

for a plot for each family as a unit and not that the alternative allotment

of plots were to be of the same number as the barracks which were

being occupied by the occupant. It was also contended that there was

no policy for giving of any loan as was contended by the

appellant/defendant. The suit was therefore prayed to be dismissed.

4. After pleadings were complete the trial court framed the

following issues:-

"1. Whether plaintiff has no locus standi to file the suit as plaintiff/LRs are unauthorized occupants of Public Premises? OPD

2. Whether the suit property has already been demolished and the reliefs claimed in respect thereof have been become infructuous? OPD

3. Whether the plaintiff has not approached the court with clean hands and has not honoured her own undertaking/affidavit for alternative plot as per scheme?OPD

4. Whether plaintiff is entitled for the relief of permanent injunction as prayed? OPP

5. Whether plaintiff is entitled for the relief of Mandatory injunction as prayed? OPP

6. Relief."

5. The admitted clause which requires interpretation is

Clause 8 of the policy of the respondent/defendant and which reads as

under:-

"That the second party through its Slum and JJ Department shall allot, in accordance with the approved project, a plot admeasuring about 33.58 sq.m on freehold basis for residential purposes to each family of the eligible inmates (comprising families of Punjabi and Bengali refugees and ex- servicemen) in exchange of and as consideration for vacating the premises whether a barrack or house or any other space under their respective possession in the Kasturba Niketan Complex and handing peaceful physical vacant possession thereof to the second party within 12 months from the date of the allotment and failure to do so will render the defaulter ineligible for allotment of a plot as aforesaid and where the allotment has already been made, the same shall become liable to be cancelled by the Second party in consultation with the first party."

6. On behalf of the appellant/plaintiff it was contended that

this policy has to be read in accordance with the cross-examination of

the witness DW-1 of the respondent/defendant and this witness in his

cross-examination dated 10.1.2013 and 20.5.2013 had admitted that

every person was to be entitled to be allotted one plot against one

barrack.

7. In my opinion, a so called „admission‟ made by the

official witness said to be the terms of a written policy cannot change

the term as it stands of a written policy. To understand the written

policy we have to look at the written policy itself and not any oral

admission of the contents of the policy which is in complete conflict

with the admitted policy. Clause 8 of the admitted policy has been

reproduced above. Both the courts below have rightly held that in

terms of this Clause 8 of this policy entitlement of allotment is to

family as a unit and there is nothing in this clause that for the number

of barracks being occupied the same number of alternative plots will be

allotted to the occupants. In my opinion, Clause 8 of the policy in no

manner states, and it is nowhere found in this Clause 8, that the

alternative plots to be allotted will be of the same number as the

barracks in occupation. In fact, I would like to observe that Clause 8 in

fact uses the expression that for whatever „space‟ which is being

occupied by a person, one alternative plot will be allotted, and

therefore, it is clear that once the policy uses the expression "Family"

as a unit and alternative plot to be allotted for a space which was

occupied by a person, there is thus no policy that number of alternative

plots to be allotted is as per the number of barracks occupied. I

therefore reject the argument of the appellant/plaintiff that

appellant/plaintiff was to be allotted two alternative plots.

8. Even the second argument urged on behalf of the

appellant that loan had to be granted to the appellant is a misconceived

argument because there is no policy which is filed and proved of the

respondent/defendant that the allottee shall, under all circumstances be

granted loan. The document Ex.PW1/G filed and proved by the

appellant/plaintiff is a letter and that too not a letter which is addressed

to the appellant/plaintiff. Even if we look at para 1(v) of this letter,

which is relied upon, it is seen that the same provides that the

respondent/defendant will make arrangements for the allottee to take

loan from the financial institutions but the allottee will be required to

be a member of a society, and it is not shown to this Court that

appellant/plaintiff has become member of a society. The clause also

requires furnishing of requisite documents for the appellant/plaintiff to

apply for the loan and it is not shown that the appellant/plaintiff has

applied for the loan with the requisite documents. Therefore as of date

there does not arise an issue of grant of the loan to the

appellant/plaintiff because appellant/plaintiff is in the quagmire created

by himself that he should get two alternative plots and not one plot,

and therefore, the issue of loan really has not arisen. The courts below

have also rightly held that there is no policy for grant of loan as no

policy was filed, and if I take a benevolent interpretation of the letter

Ex.PW1/G then in my opinion, the issue of grant of loan will only arise

after the appellant/plaintiff has become a member of the society and

has applied with the necessary documentation for grant of loan, and

which aspects have not been proved and established before the trial

court. Once the requisite ingredients of the alleged policy for grant of

loan are not satisfied, and in fact, the stage of grant of loan has not

come because there is no alternative allotment of the plot to the

appellant/plaintiff, there does not arise an issue of appellant/plaintiff

not being evicted till alternative plots are allotted and loan given for

construction on the same.

9. In fact, I would like at this stage to take a note of the fact

that the appellant/plaintiff was asked to give a sum of Rs.18,000/-

when one alternative plot was admittedly the allotted and

appellant/plaintiff did not deposit this amount of Rs.18,000/- for the

allotment of one alternative plot. Therefore in fact there is clear cut

default on behalf of the appellant/plaintiff as held by the courts below,

and accordingly, the courts below have rightly dismissed the suit on

account of not only the policy not giving the entitlement to the

appellant/plaintiff for two plots but also the appellant/plaintiff having

failed to pay the amount of Rs.18,000/- which was required for

allotment of one plot.

10. No substantial question of law arises. Dismissed.

JULY 13, 2017/ib                              VALMIKI J. MEHTA, J