Delhi High Court
Umra Devi vs North Delhi Municipal ... on 20 March, 2017
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 16.3.2017
Judgment delivered on : 20.3.2017
+ W.P.(C) 8722/2015
UMRA DEVI ..... Petitioner
Through Ms. Neha Garg and Mr. Nitin Garg,
Advocates
versus
NORTH DELHI MUNICIPAL CORPORATION ..... Respondent
Through Ms. Mini Pushkarna, Standing
Counsel for NDMC
+ W.P.(C) 8725/2015
INDERJEET SINGH ..... Petitioner
Through Ms. Neha Garg and Mr. Nitin Garg,
Advocates
versus
NORTH DELHI MUNICIPAL CORPORATION ..... Respondent
Through Ms. Mini Pushkarna, Standing
Counsel for NDMC
+ W.P.(C) 8872/2015
DAYA WANTI ..... Petitioner
Through Ms. Neha Garg and Mr. Nitin Garg,
Advocates
versus
WP(C) Nos.8722/2015, 8725/2015, 8872/2015 & 8898/2015 Page 1 of 14
NORTH DELHI MUNICIPAL CORPORATION ..... Respondent
Through Ms. Mini Pushkarna, Standing
Counsel for NDMC
+ W.P.(C) 8898/2015
KRISHNA & ORS. ..... Petitioners
Through Ms. Neha Garg and Mr. Nitin Garg,
Advocates
versus
NORTH DELHI MUNICIPAL CORPORATION ..... Respondent
Through Ms. Mini Pushkarna, Standing
Counsel for NDMC
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J.
1 The petitioners before this Court are aggrieved by Resolution
No.156 (dated 17.9.2014) passed by the respondent-North Delhi
Municipal Corporation (NDMC). It is stated that the same is
unreasonable, arbitrary and illegal; it is liable to be struck down.
2 Record discloses that the petitioners before this Court are
owners of their respective shops in Azad Market, Delhi. The same
had been leased out to them by the Land and Development Officer
Government of India. The perpetual lease deeds in favour of the
petitioners were executed by the L & DO sometime in the year 2007.
3 Respondent had developed a project for widening of the Kishan
Ganj Road under a project programme which had been approved by
the Ministry of Surface Transport. For the said purpose the shops of
the petitioners were demolished along with the others sometime in
December, 2009. The Government decided that owner/occupier of
such shops would be relocated and they would be given alternate
accommodation at the Sanjay Gandhi Transport Nagar. The
petitioners on 11.11.2009 received letters in the names of their tenants
as also in their own names stating that the respondent Corporation had
decided them by giving them alternate accommodation.
4 The respondent Corporation in this Resolution No.240 (dated
14.10.2009) decided to make a joint allotment; 50% in the name of the
owners and 50% in the name of the tenant/occupier. This was in
terms of their Relocation/rehabilitation Scheme.
5 The petitioners were aggrieved by this aforenoted resolution;
contention was that by allotting 50% of the land (which was
admittedly owned by them) the right of the petitioners up to 50% was
washed away. This act being illegal the petitioners were constrained
to challenge this resolution by filing WP(C) Nos.5268/2010,
5319/2010, 5322/2010 and 5327/2010. All the petitioners before this
Court were the petitioners in those petitions. That petition was
disposed of on 21.3.2012. Resolution No.240 dated 14.10.2009 was
set aside. The grievance of the petitioners was answered in their
favour. The findings returned inter alia by the learned Single Judge
read as under:
"9. The inherent fallacy of the aforesaid decision taken by the
respondent/MCD is twofold. Firstly, respondent No.1/MCD erred in
arriving at a conclusion that tenancies had been created by the
petitioners/lessees without seeking prior permission from respondent
No.1/MCD. It is pertinent to note that originally, the shops in question
had been leased out by the Land and Development Officer,
Government of India to lessees like the petitioners herein by executing
lease deeds for a period of 99 years. A perusal of the covenants
incorporated in the said lease deed reveals that one of the embargoes
placed on a lessee was as below:-
"(b) The Lessee shall before any assignment or transfer of the
said premises hereby demised or any part thereof obtain from
the Lessor approval in writing of the said assignment or
transfer and all such assignees and transferees and the heirs of
the Lessee shall be bound by all the covenants and conditions
herein contained and be answerable in all respects therefor. (c)
The Lessee can transfer the land after obtaining the permission
of the Lessor aforesaid and the Lessor will not share any
unearned increment in the value of the land (being the
difference in the premium paid by him to the Lessor and the
market value of the land then prevailing) for permitting such
transfer. The Lessor will, however, be entitled to claim and
recover the unearned increment in the value of land in the event
of any subsequent transfer of the land by a transferee the
amount so to be recovered being 50% of the unearned
increment in the value of the land."
10. A perusal of the aforesaid covenants reveals that only if a lessee
proposed to assign/transfer the demised premises or any part thereof,
was a written approval required from the lessor. However, no such
stipulation had been imposed in the lease deed if a lessee proposed to
let out the demised premises to a tenant. In other words, a tenant
cannot be treated as an assignee/transferee under the lease deed as
understood by the respondent No.1/MCD. 11. The second flaw in the
decision making process of the respondent No.1/MCD was to equate
the possessory rights of a tenant with the ownership right of a lessee
which is incomprehensible and unjustified, apart from being contrary
to the settled law that a tenant shall always remain a tenant.
Furthermore, the decision to rehabilitate the lessees and the
occupants of the shops by allotting a single plot and apportioning the
same between them in the ratio of 50% each, is also misconceived.
This would result in saddling a tenant with a landlord and vice-versa,
in perpetuity by treating them on the same footing. If the respondent
No.1/MCD was keen to compensate/rehabilitate both, the lessees and
the tenants, it ought to have laid down a policy in such a manner that
relief of monetary compensation/compensation by way of allotment of
plots could have been granted independently to both the parties, i.e.,
the lessees and the tenants, without insisting that they be clubbed for
grant of the said relief.
12. Counsels for the respondent No.2/tenants have drawn the attention
of this Court to the decision taken by respondent No.1/MCD in its
meeting held on 01.02.2005 regarding alternative allotment for the
displaced persons of the DMRC project at Tilak Marg and Prem
Nagar, Delhi, to submit that such persons, who had been displaced on
account of demolition of the properties falling on land acquired by the
government for being placed at the disposal of DMRC at Tilak Marg
and Prem Nagar, were compensated in both, monetary terms as also
by way of allotment of alternative shops. A perusal of the documents
handed over by the counsels for the respondent No.2/tenants in
support of the aforesaid submission does not clarify as to whether
alternative allotments were made in favour of both, the owners and
occupants or only one of them. However, it is an undisputed position
that the allotments that had been made were not joint, as done by
respondent No.1/MCD in the present case.
13. In view of the aforesaid discussion, the inevitable conclusion is
that the Resolution No.240 dated 14.10.2009 passed by respondent
No.1/MCD, insofar as it relates to rehabilitation of tenants operating
their business from the shops of the petitioners/lessees for the past
20-40 years, is unsustainable in law and therefore liable to be struck
down. As a result, that part of the aforesaid Resolution, wherein
respondent No.1/MCD had decided that in cases where leased shops
of the MCD had been rented out for a period of more than 10 years,
without seeking permission of the Corporation, alternative plots
measuring 10‟ x 15‟ would be allotted jointly in the names of the
lessees and the tenants having 50% share each on leasehold basis, is
set aside and quashed and it is directed that the aforesaid issue No.2,
as framed in the impugned Resolution No.240 of the MCD shall be
reconsidered by the respondent No.1/MCD while taking into
consideration the guidelines laid down by the government agencies in
similar cases of rehabilitation and by examining the provisions of the
Land Acquisition Act and the judicial pronouncements on this aspect.
Thereafter, a fresh decision shall be taken by the respondent
No.1/MCD within a period of eight weeks from today, under written
intimation to the petitioners as also to the respondent No.2/tenants.
The petitions are disposed of while leaving the parties to bear
their own costs."
6 After the disposal of these writ petitions, Resolution No.156
(dated 17.9.2014) was passed. The earlier Resolution No.240 (dated
14.10.2009) was set aside. The joint allotment of plots in the name of
the owners/lessees and tenants was also accordingly set aside. By way
of this Resolution separate individual plots were allotted to the owner/
lessees and the tenants respectively. The initial area of the plot (which
was subject matter of demolition) remained the same; the alternate
plot was to be bifurcated; 50% was to be given to the owner/lessee
and the balance 50% was to be given to the tenant.
7 This was the gist of the Resolution which is now the subject
matter of challenge before this Court.
8 Learned counsel for the petitioners submits that although the
earlier Resolution (No.240) was set aside; yet Resolution no.156 is no
different from Resolution no.240; the result is the same. Contention is
that the owner has admittedly been deprived of his rightful share of
the property; where he was admittedly the owner of one complete
piece of land the same now stands bifurcated, 50% has now gone to
the share of the tenant; the learned Single Judge had rightly
appreciated the contentions of the parties while disposing of WP(C)
Nos.5268/2010 and others on 21.3.2012; the same fallacy has again
been committed by the Department.
9 Counter affidavit and the submissions of the learned counsel for
the respondent have been perused. Learned counsel for the
respondent submits that the learned Single Judge had disposed of the
petition on 21.3.2012 giving liberty to the Corporation to reconsider
the matter after taking into consideration the guidelines of the
Government in similar cases and by examining the provisions of the
Land Acquisition Act, 1894 (LAC) as also the judicial
pronouncements on this aspect. Submission being that a fresh
decision has been taken in the light of these provisions and judicial
pronouncements. Learned counsel for the respondent points out that
the rehabilitation policy which had been framed by the Department
was for rehabilitation of "affected persons". This category of persons
would be para materia those persons who would be "persons
interested" in terms of Section 3 of the provisions of the LAC. The
stand in their counter affidavit is to the effect that the larger interest of
public affected by displacement due to the aforenoted demolition
programme had been kept in mind; the right of these tenants were
recognized as "persons affected" for the purpose of rehabilitation;
these tenants falling in the category of "affected persons" have been
considered. Submission being that 121 shops had been demolished
from Azad Market. There were only 9 shops which were in
occupation of tenants. The petitioners before this Court are four in
number. They are Somnath Arora, Mool Chand, Sugna and Om
Prakash Chopra. The present Resolution had been passed keeping in
view humanitarian considerations as these tenants were occupying
these shops since the last several years i.e. since 1957, 1971, 1973 and
1980; they are the ones who are actually affected. They would come
within the definition of "affected persons" as defined in the National
Rehabilitation and Resettlement Policy, 2009 issued under the aegis of
the Ministry of Rural Development. It is further pointed out that the
Apex Court had an occasion to deal with the concept of "persons
interested" as appearing in Section 3 of the Land Acquisition Act to
include all persons claiming an interest in compensation to be made
on account of the acquisition of the land. The Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation
and Resettlement Act, 2013, had also been considered in matters of
compensation. The Apex Court in fact in such matters has gone on to
apportion compensation in the ratio of 75% in favour of the tenant and
25% in favaour of the actual owner. The definition of "persons
interested" is para material to aforenoted definition of "affected
persons". All these parameters had been considered before this
Resolution No.156 (dated 17.9.2014) had been drafted.
10 Arguments have been heard. Record has been perused.
11 This Court notes that the learned Single Judge on 21.3.2012 had
culled out two fold reasons for not agreeing to the policy detailed in
Resolution No.240 dated 14.10.2009. The settled law admittedly
being that a tenant will always retain the status of a tenant; his status
from tenant cannot be converted into that of an owner; the earlier
Resolution had been quashed keeping this legal parameter in mind.
The present Resolution No.156 is again founded on the same basis.
To convert the status of a tenant into that of a landlord is not only
against all statutes dealing with a landlord-tenant relationship but even
against all the principles of equity, fairplay and natural justice. A
"transfer" of property as envisaged under the Transfer of Property Act
has been given a complete go-by. All legal legislations have been
ignored. By way of this Resolution a man who was owning one
complete piece of land had suddenly been reduced in his ownership to
a status of 50%. What he had done was to lease out his piece of land
to a tenant; he has not transfered his ownership rights in the property.
By the present Resolution, the Corporation has taken away all these
rights of the petitioners. The petitioners who were the owners of their
respective pieces of land have suddenly been reduced to a half
ownership status. This was for no fault on their part. This Resolution,
if allowed to be implemented, would cause a grave prejudice; it would
be a serious detriment to the rights of such petitioners.
12 The policy of the Department to rehabilitate not only the owners
but also the tenant may have some good intentions but those intentions
have to be in the interest of all; a decision which works in favour of
one and to the detriment of another cannot be upheld as a fair
decision. This is exactly what has happened in the instant case.
13 The submission of the respondent that the principle of a fair
compensation in matters of monetary compensaqtion adjudicated
under the LAC entitles the respondent to make such an apportionment
in land as well is misconceived and misunderstood. Such an
apportionment cannot be conceived in matters of division of
immovable property. The provisions of the LAC are different. The
Apex Court while dealing with apportionments of compensation under
the said Act was dealing with monetary compensation; those
proceedings had arisen strictly out of proceedings under the LAC.
Admittedly, no proceedings under the LAC have taken place in the
instant case. There are not cases where the respondent had acquired
the lands of the petitioner. It is only pursuant to a road widening
project that the shops of the petitioners had necessarily to be
demolished to carry out and implement that project. In that process a
Rehabilitation Policy had been planned by the government. This
Policy has curtailed the rights of the petitioners. This Resolution
definitely works to their disadvantage. The right of the petitioners to
relegate themselves to eviction proceedings against their tenants has
also been taken away. There is no right left with them to seek their
eviction. The tenant has been put at par with the owner.
14 Admittedly, out of 121 shops which stand demolished, there are
only 9 persons who are in the capacity of tenants. If the department is
really keen to rehabilitate/give alternate accommodation to such
tenants (nine in number of whom four are before this court) they have
their option to do so by giving them allotment of land dehors
disturbing the rights of the petitioners. At the cost of repetition giving
an advantage to one to the disadvantage of another is not a fair policy.
The act of the respondent in dividing the plot of the petitioner and
giving 50% of the same to the tenants and thereby changing the status
of the petitioner from a full owner to a half owner is a decision which
cannot be sustained. The Department had in fact arrived at the same
decision by passing resolution no.240 on 14.10.2009. This had been
quashed by the Learned Single Judge on 21.03.2012. The Department
has again relegated the petitioners to the same status. By way of the
first resolution a joint ownership had been granted to the petitioners
and to their tenants. Vide the second resolution (now impugned) the
right of the petitioners still remains reduced to 50% ; instead of a joint
allotment it has now become an individual allotment of 50% to the
petitioners and 50% to the tenants. The end result is the same. At the
cost of repetition this is against all statutory provisions. Such an act
cannot be sustained in law. The act of the department being illegal;
this resolution is quashed.
15 Petitions allowed.
INDERMEET KAUR, J
MARCH 20, 2017/A
