* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: October 05, 2009
Judgment Delivered on: October 22, 2009
+ L.P.A. 221/2003
SHRI RAVINDER SINGH ...........Appellant
Through: Mr.Sumit Bansal, Mr.M.G.Vachar,
Mr.Ateek Mathur & Mr.Manish
Paliwal, Advocates.
Versus
DDA & ORS. ...........Respondents
Through: Ms.Sangeeta Chandra, Advocate.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not? No
3. Whether the judgment should be reported in the
Digest? No
PRADEEP NANDRAJOG, J.
1. The appellant is aggrieved by the judgment and
order dated 20.3.2003 dismissing the writ petition filed by the
appellant.
2. The prayer made in the writ petition was to quash
the allotment of the site forming subject matter of the claim by
the petitioner in the writ petition to respondents No.4 and 5
LPA 221/2003 Page 1 of 14
with a writ of prohibition to be issued against Delhi
Development Authority (DDA) restraining it from dispossessing
the petitioner from the site between Shop No.33 and Stall
No.53 Wadhwa Market, Hudson Line, Kingsway Camp, Delhi.
3. An alternative prayer was made that in case the
main reliefs asked for were not granted, DDA be directed to
allot the site in question to the petitioner.
4. The writ petition filed by the petitioner was tagged
along with WP(C) No.776/1997 on account of the fact that the
learned Single Judge had expressly stated that the writ filed by
the petitioner raises issues which were raised in WP(C)
No.776/1997.
5. The two writ petitions were disposed of vide two
separate orders dated 22.9.2002.
6. WP(C) No.776/1997 was disposed of on a consent
by learned counsel for the parties that the petitioners therein
would be allotted alternative sites in terms of the scheme of
rehabilitation set out in the further second additional affidavit
filed by the DDA on 4.9.2001 and further that DDA would
reconsider the rates at which the alternative sites were to be
allotted.
LPA 221/2003 Page 2 of 14
7. The writ petition filed by the petitioner was
disposed of holding that though the petitioner had not
consented to the consent directions, he could not lay a claim
to the site in question and thus even he would be entitled to
an alternative allotment on the same terms on which
alternative allotment was made by DDA to the writ petitioners
of WP(C) No.776/1997.
8. The appellant challenged the order dated 22.9.2002
by and under LPA No.822/2002 which was allowed with a
direction that the writ petition filed by the appellant be re-
decided on merits.
9. At the remanded stage, the writ petition filed by the
appellant has been dismissed vide order dated 20.3.2003.
10. Briefly stated, claim of the appellant in the writ
petition was that at the time of partition his father as also
many other persons who had migrated to India settled in
Kingsway Camp on Hudson Lines, Outram Lines, Reid Lines
and Edward Lines. The area was developed by the
Government and the Municipal Corporation of Delhi (MCD)
allotted, on tehbazari, a site measuring 10′ x 10′ between
Shop No.33 and Stall No.53 in Wadhwa Market to the father of
LPA 221/2003 Page 3 of 14
the appellant. That the father of the petitioner was asked to
vacate the site and he filed a suit for permanent injunction
against the Municipal Corporation of Delhi. The matter was
litigated right up to the Supreme Court and the relief which
was granted to the father of the appellant was that he would
not be dispossessed without an opportunity of hearing being
granted to him by the Municipal Corporation of Delhi.
11. That from time to time Re-development Scheme
were framed for the re-development of Kingsway Camp area
and under one such scheme the occupants of Wadhwa Market,
Kingsway Camp were sought to be evicted and they filed a writ
petition numbered as WP(C) No.776/1997 challenging their
displacement.
12. We may note at this stage that in para 10 of the
writ petition filed by the appellant, he averred as under:-
“10. That when number of shopkeepers adjoining the
shop of the petitioner’s father was sought to be
forcibly removed by the Delhi Development Authority,
they filed a Civil Writ No.776 of 1997 in this Hon’ble
Court challenging the action of the Delhi Development
Authority. A copy of the writ petition is attached
herewith and is marked Annexure-C and copies of
orders are annexed herewith as Annexure-C-1 and C-2
respectively.”
13. The appellant alleged that his father died in the
year 1989 and on the death of his father he paid the tehbazari
LPA 221/2003 Page 4 of 14
to the Municipal Corporation of Delhi and that he repeatedly
represented to the MCD to mutate the tehbazari site in his
name.
14. As per the appellant the Re-Development Scheme
of Kingsway Camp does not cover the land on which 53 shops
including the site allotted to the father of the appellant in
Wadhwa Market is situate. The appellant further alleged that
fearing dispossession he filed a suit for injunction to restrain
DDA from dispossessing the appellant or demolishing his shop.
He was granted an ex-parte stay which was vacated on
3.6.2000. The appellant filed an appeal in which stay against
dispossession was granted by the learned Additional District
Judge on 9.6.2000. Stating that he continued to apprehend
dispossession and that the claim of the appellant was at par
with those of the writ petitioners in WP(C) No.776/1997, the
appellant was constrained to file the writ petition.
15. We have noted herein above in para 12 the
averments made by the appellant in para 10 of the writ
petition filed by him. We note further averments made by the
appellant in paras 14 to 18 of the writ petition. The same read
as under:-
LPA 221/2003 Page 5 of 14
“14. That the total number of shops in the same line
in Wadhwa Market opposite the public road on which
the Petitioner’s shop is situated and which has been
given on tehbazari basis by the Municipal Corporation
of Delhi, is 53 besides the petitioner’s shop.
15. That the perusal of the scheme of Kingsway
Camp will also show that it was not meant to cover the
aforesaid shopkeepers to whom the sites have been
allotted by the Municipal Corporation of Delhi on
Tehbazari basis. They constitute a class apart and
have absolutely nothing to do with the redevelopment
scheme of Kingsway Camp or who would be affected
by the implementation of the said scheme. In fact, the
broad outlines of the scheme were to re-settle the
individuals who had got their residential
accommodation in the Kingsway Camp and who might
have to be shifted as the result of the implementation
of the redevelopment scheme.
16. That so far as the aforesaid 53 shops and the
shop of the petitioner were concerned, they were
wholly outside the purview of the scheme of
redevelopment.
17. That it is in these circumstances that the Delhi
Development Authority filed the aforesaid affidavit in
which it admitted that Wadhwa Market had not been
transferred by the Municipal Corporation of Delhi to
the Delhi Development Authority.
18. That some officials of the Delhi Development
Authority taking advantage of the scheme, found it
convenient to extort money from the shopkeepers
including the petitioner on threat of demolishing their
shops in the name of resettlement scheme.”
16. From the pleadings in WP(C) No.776/1997, it is
apparent that 114 shops were constructed on Edward Lines to
LPA 221/2003 Page 6 of 14
accommodate the displaced refugees and to satisfy the claim
of 233 displaced refugees said number of shops were
additionally constructed and allotted, but in spite thereof,
claim of 53 persons could not be satisfied. With the
intervention of late Shri B.D.Wadhwa, a veteran freedom
fighter and a member of the Municipal Corporation of Delhi, a
market called Wadhwa Market, having 53 shops was
constructed and allotted to 53 persons. A redevelopment plan
of Kingsway Camp was drawn up and as per DDA, in the
process of re-alignment of roads, Wadhwa Market was to be
demolished. The allottees of 53 shops in Wadhwa Market took
a stand that Wadhwa Market was not to be affected by the
scheme of redevelopment of Kingsway Camp. Some of the
shopkeepers filed the writ petition seeking a declaration that
Wadhwa Market was not affected by the redevelopment
scheme of Kingsway Camp. They sought a prohibition against
DDA to demolish the market.
17. Now, the appellant himself had claimed that the
site allotted to his father is between Shop No.33 and Stall
No.53 in Wadhwa Market. On inquiry from learned counsel for
the parties, we were informed that to accommodate some left
LPA 221/2003 Page 7 of 14
out allottees, tharas called stalls i.e. cement platforms were
constructed by MCD and allotted on tehbazari to some
persons. Thus, it is apparent that the site allotted to the father
of the appellant is in the precincts or abuts where Wadhwa
Market once stood.
18. Wadhwa Market has since been demolished to give
effect to the redevelopment scheme. Evidenced by the
consent order dated 27.9.2002 disposing of WP(C)
No.776/1997, the shopkeepers in the said market have agreed
for allotment of alternative sites at rates determined by DDA.
19. As far as the appellant is concerned, in the absence
of any protective umbrella i.e. an interim order in his favour,
even the appellant has been removed from the site allotted to
him on tehbazari.
20. A half-hearted attempt was made by learned
counsel for the appellant to urge that the site allotted on
tehbazari by the MCD to the father of the appellant is not in
Wadhwa Market. But in the teeth of the averments made in
the writ petition by the appellant, contents whereof have been
noted by us in para 12 and 15 above, learned counsel
conceded that it is too late in the day for the appellant to urge
LPA 221/2003 Page 8 of 14
that the site allotted on tehbazari by the MCD to the father of
the appellant is not within Wadhwa Market.
21. The second feeble attempt to urge that the site
allotted on tehbazari by the MCD to the father of the appellant
is not affected by the scheme of redevelopment of Kingsway
Camp is negated by us for the reason the redevelopment plan
filed by DDA in WP(C) No.776/1997; available at page 88 of the
record of the said writ petition clearly shows that the entire
land where the shops in Wadhwa Market were constructed and
abutting land has got affected by the redevelopment scheme.
22. Realizing that the feeble pleas afore-noted were
without much substance, learned counsel for the appellant
vehemently urged that the claim of the appellant for
alternative land has to be considered and directions have to be
issued to DDA to allot a parcel of land ad-measuring 10′ x 10′
i.e. the same size as was allotted by MCD to the father of the
appellant on tehbazari.
23. The plea of learned counsel for the appellant for
allotment of alternative land to the appellant needs to be
considered with reference to the fact that under the MCD, the
father of the appellant was granted the site ad-measuring 10′
LPA 221/2003 Page 9 of 14
x 10′ on tehbazari i.e. on license on yearly basis. The only
right of the father of the appellant was to have the license
renewed as per the tehbazari policy. It has to be noted that as
per the tehbazari policy of the MCD, the allottee of a site on
tehbazari cannot erect even a temporary structure on the site
because tehbazari is a license to squat on the site during the
day time and sell wares. Nothing can be stored or stacked at
the site. The appellant has admittedly violated the terms of
allotment and not only did he construct a pucca shop on the
site but even constructed a residential room at the first floor
level. If this be so, which it is so, the appellant has violated
the terms of allotment of the tehbazari site and thus has
disentitled himself to the grant of any discretionary relief.
24. As has been noted herein above, the other similarly
situated persons agreed to be rehabilitated at an alternative
site to be developed by DDA. In spite of the fact that the
appellant himself pleaded in the writ petition that the site
allotted to his father was between Shop No.33 and Stall No.53
in Wadhwa Market, the appellant chose not to concede as did
the writ petitioners of WP(C) No.776/1997 to accept alternative
allotment. Whereas said writ petitioners conceded that the re-
LPA 221/2003 Page 10 of 14
development plan affects Wadhwa Market and since the re-
development plan was subservient a public purpose, their
private interest was a subordinate interest and hence requiring
them to be shifted out, but the appellant made no such
concession. Of course, the appellant was entitled to chose his
path. But, having taken his chance, the appellant cannot turn
back and claim to be put at par with the other affected
persons. We note that in spite of the obstinate stand taken by
the appellant, the learned Single Judge granted same relief i.e.
to be allotted an alternative site, to the appellant who got the
said order set-aside in the appeal.
25. By its very nature, a rehabilitation scheme targets
those who accept rehabilitation under the scheme. Thus, the
authority designs the scheme in a manner that the persons
desirous of seeking rehabilitation are accommodated.
Tinkering with schemes and especially under judicial orders
creates immense problem for the executive. It has to be noted
that the rehabilitation scheme proposed by the DDA to
rehabilitate the affected shopkeepers is a purely beneficial
scheme framed by DDA as a policy goodwill gesture.
Otherwise, there is no statute which mandates DDA to give
LPA 221/2003 Page 11 of 14
alternative allotments to squatters affected by re-development
schemes. To issue a direction to DDA to accommodate the
appellant by allotting an alternative site would create immense
problem for DDA as was urged by learned counsel for DDA
because DDA would have to identify a single site for the
appellant. Had appellant chosen to see logic and reason and
stood by the other similarly situated persons his claim could
have been satisfied in the scheme for rehabilitation.
26. At best, the claim of the appellant can be for
allotment of a site on tehbazari under the MCD for the reason
it was the MCD which had allotted, on tehbazari, the site in
question to the father of the appellant. At best, the appellant
can claim that before MCD transferred the site to DDA, the
claim of the appellant as per the policy of street vending i.e.
tehbazari had to be considered and satisfied.
27. Learned counsel for the DDA conceded that the
Municipal Corporation of Delhi has a street vending policy as
per which claim of prior squatters is considered if the site in
question has to be re-possessed by the Municipal Corporation
of Delhi and such squatters, subject to availability, have to be
given, on tehbazari basis, alternative sites.
LPA 221/2003 Page 12 of 14
28. Since the issue relates to the livelihood of the
appellant, we feel that the ends of justice would be met if the
Municipal Corporation of Delhi, which we note has been
impleaded as respondent No.3, is directed to consider the
claim of the appellant for allotment of an alternative site on
tehbazari as per the policy framed by the Municipal
Corporation of Delhi. While so considering the claim of the
appellant, the MCD would take note of the fact that the father
of the appellant was allotted the site in respect whereof the
appellant has been litigating since the year 1967 and after the
death of the father of the appellant, MCD accepted the license
fee from the appellant and did not reject the application
submitted by the appellant to be substituted as the allottee on
the death of his father.
29. The appeal accordingly stands disposed of issuing a
direction to the Municipal Corporation of Delhi to consider the
claim of the appellant for allotment of an alternative site on
tehbazari as per the policy framed by the Municipal
Corporation of Delhi. While so considering the claim of the
appellant, the MCD would take note of the fact that the father
of the appellant was allotted the site in respect whereof the
LPA 221/2003 Page 13 of 14
appellant has been litigating since the year 1967 and after the
death of the father of the appellant, MCD accepted the license
fee from the appellant and did not reject the application
submitted by the appellant to be substituted as the allottee on
the death of his father. MCD would do so on receipt of a
written representation from the appellant with all supporting
documents; the decision would be taken within six weeks of
receipt of the representation from the appellant and the
decision would be communicated to the appellant. If the MCD
allots an alternative site on tehbazari to the appellant, on the
appellant completing the requisite formalities and paying the
necessary fee, possession thereof would be handed over to the
appellant within three weeks of all formalities being
completed. Needless to state, if the MCD rejects the
representation of the appellant, he shall be entitled to take
resort to such action as is permissible under law.
30. No costs.
(PRADEEP NANDRAJOG)
JUDGE
(SURESH KAIT)
JUDGE
OCTOBER 22, 2009
Dharmender
LPA 221/2003 Page 14 of 14