* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No. 11/2008 & CM No.700/2008
Date of Decision: April 28, 2010
JAMALUDDIN ..... Appellant
Through: Mr.Bahar-U-Barqi, Advocate.
versus
MOHD. USMAN (NOW DECEASED & ORS. ..... Respondents
Through: Ms.Suparna Srivastava,
Standing Counsel for MCD.
Mr.O.P.Saxena, Advocate.
%
CORAM:
HON'BLE MS. JUSTICE ARUNA SURESH
(1) Whether reporters of local paper may be
allowed to see the judgment?
(2) To be referred to the reporter or not? Yes
(3) Whether the judgment should be reported
in the Digest ? Yes
JUDGMENT
ARUNA SURESH, J. (Oral)
RSA No. 11/2008
1. Appellant (plaintiff) filed a suit for declaration and mandatory
injunction seeking a decree for declaration against the respondent that he is
entitled to a plot of 80 square yards in Light Industrial-cum-Commercial
Complex, Shahjada Bagh, Delhi at pre-determined rate.
RSA 11/2008 Page 1 of 7
2. In brief, case of the appellant is that he was residing in
property No.3359/VIII, Turkman Gate, Fatak Telian, Delhi and was using
the property for commercial-cum-residential purposes. He was running the
business of kerosene oil. Said property was demolished in April, 1976 and
appellant was issued demolition slip No.9119 dated 16 th April, 1976. He
was also issued possession slip bearing No.8829 dated 8th July, 1976. He
was allotted an alternative plot of 12 ½ square yards bearing No.41, Block
No.16, Trilokpuri. Since the same was not suitable for his business, he did
not accept it nor took possession of the said plot. Appellant made
representation to the respondent requesting it to allot an alternative plot at
Shahzada Bagh or Mayapuri Industrial Area or built-up shop at Turkman
Gate. However, his request was declined by the respondent on 5 th October,
1992. This resulted into issuance of a notice dated 7 th December, 1992 by
the appellant under sections 477/478 of DMC Act. Respondent department
raised preliminary objection to the maintainability of the suit and also
averred that appellant was allotted plot No.41, Trilokpuri, which he then
transferred to Mohd. Salim against terms of allotment. Representation of
the appellant for allotment of a shop at Turkman Gate was rejected thrice by
the Allotment Committee and therefore, he was not entitled to any
alternative plot as claimed.
3. Appellant lost his suit in the Trial Court. He also lost his
RSA 11/2008 Page 2 of 7
appeal in the First Appellate Court. Hence, this appeal suggesting some
substantial questions of law to be formulated.
4. It is a common case of the parties that in lieu of residential
accommodation he was allotted accommodation in J.J. Colony, Trilokpuri.
Appellant was issued possession slip for commercial plot at Trilokpuri.
However, appellant refused to take possession of the said plot on the plea
that the plot was not suitable for his business and he was not interested in
the said allotment. Allotment given to the appellant was never cancelled.
On these admitted facts and after analyzing other evidence on record, while
disposing of issues No. 2 and 3, in its judgment dated 21 st February, 1998
Trial Court observed:-
“…….Perusal of the various documents would
show that the plaintiff have been issued
possession slip in respect of the plot at Trilok
Puri. PW1 has stated that the said slip was handed
over at site by the deft to the plaintiff and not in
office. In his cross examination he has stated that
the plaintiff at any point of time come to their
office to complaint that the plot in question was
not vacant. I have gone through the various
representations made by the plaintiff to the
defenant at various points of time, in all the
representations the plaintiff has only asked for
allotment of shop at Turkman Gate. He has not
stated anywhere that he was not allotted plot or
that the plot was not vacant. On the contrary theRSA 11/2008 Page 3 of 7
plaintiff has himself given an affidavit before
the deft Ex. Pw3/a and also the affidavit of Md.
Saleem is on record. The plaintiff has clearly
expressed his desire to handover the plot in
question to DDA as he does not benefit by
getting the said plot in any manner.
I have also considered the copy of the
judgement of our own High Court in the case of
Immamuddin vs. UOI reported in 1997 Vol. 45,
DLT Page: 510 wherein the High Court has
dismissed the petition of the brother of the
plaintiff on almost similar grounds. Perusal of
the guidelines would show that the case of the
plaintiff is not covered in the said guidelines.
Even otherwise the allotment committee has
found that the plaintiff is not eligible for the
allotment of the built up shop at Turkman Gate,
Shahjadabagh etc.Plaintiff has failed to show any breach of legal
obligation by the defendant in any manner. This
issue is herebydecided against the plaintiff and I
hold that the plaintiff is not entitled to any plot
of 80 sq. yards area as he has been allotted
already plot at Trilokpuri in respect of which he
has been issued possession slip by the
defendant. Further he is not entitled to any relief
of declaration and injunction as asked for in the
plaint.”
5. It is pertinent that Imamuddin, brother of the appellant had
also filed a writ, which was dismissed. Facts and circumstances of both the
cases are similar; rather identical. Appellant and his brother Imammudin
were residing in the same property, which was demolished and a common
RSA 11/2008 Page 4 of 7
demolition slip was issued to both the brothers. Besides, a possession slip
bearing No.656 dated 29th May, 1976 was also issued to Imammudin. He
did not take possession of the allotted shop at Trilokpuri, with the result,
allotment made in his favour was cancelled. Trial Court took into
consideration Imamuddin’s case, reported in 1997, volume 45 DLT Page
510.
6. Appellate Court reassessed the entire evidence of the parties
and found no infirmity and illegality in the judgment and decree of the Trial
Court.
7. Learned counsel for the appellant submitted that appellant
was entitled to relaxed guidelines and was, therefore, entitled for allotment
of an alternative plot measuring 80 square yard. While disposing of
Imamuddin’s case, Division Bench of this Court also considered a similar
plea raised by Imamuddin and concluded that petitioner was not covered
under the relaxed guidelines of 1991. The relaxed guidelines were issued
only for those cases where the allotted plot was not available for occupation
by an evictee because of re-allotment thereof by the Department to some
other person.
8. In the present case, plot No. 41, Block No.16, Trilokpuri was
allotted to the appellant, but he did not occupy the same and failed to pay
RSA 11/2008 Page 5 of 7
the license fee.
9. As discussed above, appellant himself had decided not to
accept the allotment of the said plot on the plea that it was too small for his
business.
10. Appellate Court in paras 12 and 14 of its impugned judgment
observed:-
“12. ………..The question of applicability of
relaxed guidelines is no more rest integra in
view of decision of Hon’ble High Court in
Immamuddin (supra). It was held in the said
case that the relaxed guidelines were applicable
to those cases only where the allotted plot was
not available for occupation by an evictee
because of re allotment thereof by the
department to some other person. Due to failure
of the allottee to occupy allotted plot and paying
the license fee resulted in cancellation. “In that
case the petitioner had admitted that he himself
did not accept the allotment of alternative plot
no. 27/56 Trilok puri as the same was too small
for his business. In the instant case the appellant
has admitted that he did not like the allotment
of alternative plot no.41 as the same was too
small.
14. The real dispute is whether possession of
the alternative site slip was issued or actual
physical possession was also handed over to the
plaintiff. To my mind there is no difference
between handing over possession slip andRSA 11/2008 Page 6 of 7
giving of physical possession. The purpose of
handing over slip is to enable the allotee to take
the physical possession. If the allotee himself
refuses to take the physical possession, the
MCD can not be blamed for it. This what has
happened in the present case.”
11. Under these circumstances, when substantial question of law,
as proposed by the appellant has already been finally determined by this
Court in a writ petition, filed by appellant’s brother Imammudin on identical
grounds, I am of the view that no such substantial question of law arises in
this appeal. It is pointed out by counsel for the respondent that appellant
after allotment of the plot has transferred the same to some other person and
the said allotment has not been cancelled till date.
12. Hence, I find no merits in this appeal. The same is
accordingly dismissed.
CM No.700/2008 (for direction)
13. Since the appeal is dismissed, this application has become
infructuous and the same is accordingly dismissed.
(ARUNA SURESH)
JUDGE
APRIL 28, 2010
sb
RSA 11/2008 Page 7 of 7