* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ L.P.A. No. 548 OF 2010
Reserved on : 18th April, 2011
% Date of Decision: 25th July, 2011
MUNICIPAL CORPORATION OF DELHI ....Appellants
Through Mr. O.P.Saxena and
Mr. Mithlesh Kumar, Advocates.
VERSUS
MOHD ISMAIL ....Respondent
Through Mr.Apurb Lal, Ms. Alka, Mr. Daleep Singh
and Mr. Kiran Babu, Advocates.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not ? Yes
3. Whether the judgment should be reported Yes
in the Digest ?
SANJIV KHANNA, J.
In the present intra-Court appeal filed by the Slum and JJ
Department of the Delhi Municipal Corporation now known as Delhi
Urban Shelter Improvement Board, the challenge is to the decision dated
23rd December, 2009 passed in W.P.(C) No. 819/2009, Mohd. Ismail Vs.
Slum & JJ Department (MCD). By the impugned judgment, the writ
petition filed by Mohd. Ismail, the respondent herein, has been allowed
and the following directions have been issued:-
LPA 548/2010 Page 1 of 17
“46. In view of the above, it is directed as
follow:-
(i) the petitioner or his authorised
representative shall file duly attested copies of
the photocopies whereof stand filed by him
before the Director (Allotment) of Slum & JJ
Wing of the MCD on 29th December, 2009 at
11.00 a.m.
(ii) the petitioner’s case shall be considered and
he shall be allotted a plot of 40 sq. meters for
commercial user in terms of his entitlement.”
2. The main contention and issue raised by the appellant before this
Court as was before the learned Single Judge is delay and laches. The
question, which arises, is to what extent the delay and laches would defeat
the right, if any, of the respondent. In order to decide the issue, relevant
facts may be noticed.
3. The respondent was in occupation of property bearing No.3339,
Ward No.XIV, Sarai Khalil, Sadar Bazar, Delhi, which was demolished in
the year 1976. Before demolition, CID of Delhi Police had carried out a
survey and prepared a report detailing the occupants of the properties,
which were to be demolished. The respondent was identified at Sr.
No.521 and as per the report respondent was in occupation of 22’×12′ and
22’×12 (first floor) and the said premises was being used for residence
and factory. Licence No.31083 was mentioned. It records the rent receipt
LPA 548/2010 Page 2 of 17
No. as 741071. The respondent has also placed on record a copy of the
CID survey report at pages 143 and 144 of the paper book in support of
the said contention. There is material in the form of internal file notings,
which show that on verification, it was found that one Mohd. Ismail S/o
Mohd. Ishaque was in occupation of the aforesaid property, which was
being used for residence and factory. The respondent has referred and
relied upon Form No.C (registration certificate of the establishment)
issued under Delhi Shops and Establishments Act, 1954 that he was
operating an establishment from the said premises in the name and style
of Modern Cabinet Manufacturing. It is not disputed by the appellant that
in terms of the policy, the persons in occupation of the properties at Sarai
Khalil, Sadar Bazar, Delhi, which were demolished, were entitled to
alternative residential accommodation. These persons were also entitled
for commercial or industrial plots, if they were carrying on commercial
activities from the premises, which were demolished.
4. The respondent was issued demolition slip No.5198 dated 16th May,
1976 and thereafter allotted a residential flat in Inderlok. The respondent,
however, protested and had asked for change of allotment of the flat. On
24th July, 1985, the respondent was allotted an MIG flat No. A-2/1, Sarai
Khalil, Sadar Bazar, Delhi. There is no dispute about the allotment of the
LPA 548/2010 Page 3 of 17
said residential flat. The appellant does not dispute that the respondent
was entitled to allotment of the said flat.
5. The dispute pertains to allotment of commercial or industrial plot to
the respondent. The respondent has placed on record and relied upon the
letter dated 26th July, 1976 written by the Commissioner, Slum & JJ
Department, DDA to the respondent in connection with the allotment of
an industrial plot at Shahzada Bagh. He was asked to produce his ration
card, failing which allotment shall be cancelled and possession shall be
taken by the department. It is apparent that the respondent did not respond
to this letter. The respondent was asked to produce ration card against the
House No.C-39/8, Main Road, Jafrabad, New Seelampur, Delhi. The said
letter was addressed to Mohd. Ismail at House No.53C, Block A-7,
Inderlok, Delhi. There is some doubt about the authenticity of the said
letter as there is no explanation forthcoming why the respondent was
asked to produce ration card against the aforesaid address at New
Seelampur, whereas as per the demolition slip and the CID survey report,
the respondent was residing at Sarai Khalil, Sadar Bazar, Delhi. The file
number (11/PA/AC/HQ/76) mentioned on this letter is different from the
file number mentioned by the respondent in its subsequent
correspondence, which is No.141/PA/AC/HQ/76, but this appears to be a
LPA 548/2010 Page 4 of 17
typographical error. It may be noted here that the file
No.141/PA/AC/HQ/76 is missing and is not traceable. Office copy of this
letter dated 26th July, 1976 is not available on the records of the appellant.
It is on this letter dated 26th July, 1976 that the claim of the respondent is
based and was reiterated and examined in 1986 and thereafter.
6. The respondent after 1976, wrote the letter dated 2nd June, 1986. In
this letter he had stated as under:-
“Incidentally I met with an accident in those days
causing a major by injury which did not allow me to
pursue my case for the allotment of alternative plot at
Shahzada Bagh. I received the above referred letter
from your office but failed to appear before the
Office due to the above said reason. My children
were very young and therefore they too, could not go
to the office.
Sir, I am in a very miserable condition. During the
last 10 years, I have been under difficult conditions.
Being confined to bed I could hardly do for my
family and this forced my children to give up studies
and make for the livelihood of the family.
Under the circumstances mentioned above I could
not get allotment of plot at Shahzada Bagh.
You are, therefore, requested to kindly allot me an
industrial/commercial plot at Shahzada Bagh at the
earliest.”
(emphasis supplied)
LPA 548/2010 Page 5 of 17
7. This was followed by letters of similar nature dated 18th June, 1986,
and 4th January, 1988. Thereafter, letters dated 25th February, 1991, 26th
June, 1998 and 29th December, 1998 were written by the respondent.
These letters, and the file notings have been examined below.
8. After 1999, there was again silence on the part of the respondent at
least till May, 2003 when it appears that applications/requests were made
for allotment of a commercial plot. These were forwarded through
Minister of Development, Revenue Irrigation & Food and Food & Civil
Supply, Delhi Secretariat and by the then Mayor of Delhi, the Additional
Private Secretary Minister of State for Parliamentary Affairs, Government
of India and the then Municipal Councillor, Qasab Pura consitutency. In
the file notings, it was recorded that the original file was not available,
documents submitted by the respondent were not complete since the
originals were not filed by the respondent. It was recorded in the noting
dated 30th May, 2003 that the allotment was to be examined by the
allotment committee but as the same was not functioning, as and when the
same was constituted , the case of the respondent would be put up to the
allotment committee.
9. Another representation of the petitioner was forwarded by
Chairman, Standing Committee, MCD and by the Additional Private
LPA 548/2010 Page 6 of 17
Secretary to the Ministry of State for Youth Affairs and Sports, Govt. of
India, New Delhi and was processed on 3rd September, 2003. The file
notings in the month of October, 2004 reveal that the respondent had
made a further representation for the plot. This representation was
processed and in the noting dated 22nd December, 2004, it was recorded
that the properties in Sarai Khalil/Turkmangate area were demolished
during 1975-76 and the damages for the period during which the property
remained in the category of residential/ commercial use were charged on
the prevailing rate till the date of demolition. Licence fee was chargeable
for the alternative allotment for the period during which the flat/plot if
allotted remained under the possession of the evictee/allotee. This is
important and shows that the respondent was required to pay of the plot
and also pay damages for using the property at Sarai Khalil area prior to
demolition.
10. Another detailed note dated 7th January, 2005, records that in 1987,
the case of allotment of the commercial plot was assessed in the past and
the respondent was liable to pay damages for commercial use for the
period 1st January, 1969 to 16th May, 1976 @ Rs.5/- per square meter and
Re.1 per square meter for the residential area. The total amount payable
was Rs.13,428/-, but the respondent was not informed. Thereafter, the
LPA 548/2010 Page 7 of 17
file was submitted to the allotment committee for passing of appropriate
orders.
11. It appears that the respondent approached the Public Grievance
Commission, Government of NCT of Delhi by making a complaint.
Vide letter dated 16th August, 2004, the Public Grievance Commission
was informed that the record regarding allotment of flat to the respondent
was available and could be produced whenever required by the respondent
to process the case. Thereafter a number of letters dated 31 st August,
2005, 27th March, 2006, 14th April, 2006, 7th January, 2008, were written
by the respondent. On 27th July, 2009, the allotment committee rejected
the claim made by the respondent, inter alia, recording as under:-
“The applicant was given several
opportunity to attend the meetings before
Allotment Committee along with the
attested/original documents in support of his
claim. But even on the last & final opportunity
he did not turn up along with the
original/attested copies of relevant documents to
substantiate his claim for allotment of
commercial plot. On 05.05.09 the applicant had
submitted photocopies (unattested/ unsigned by
the Competent Authority) namely Form-C Delhi
Shop & Establishment Act, 1954 and CID
survey report. All these documents were sent
for verification from the concerned department,
but the same could not be verified by theLPA 548/2010 Page 8 of 17
respective department due to old non-available
relevant records.
After examining the records of the
department as well as documents submitted by
the applicant the Allotment Committee is of the
view that the documents pertain to about 30
years old and inspite of several times calls sent
to the applicant. The applicant failed to provide
the original documents/ attested copy of
photocopy of documents before the Allotment
Committee. Hence, the Allotment Committee is
of the view that there is no justification &
weightage in the claim for allotment of
alternative Commercial plot in favour of the
applicant.”
12. This order was then made subject matter of challenge in Writ
Petition No. 819/2009 which has been allowed by the impugned order
dated 23rd December, 2009.
13. The question which arises for consideration is whether delay and
laches in the present case should disentitle the respondent from the reliefs
granted and allowed by the learned Single Judge. In Ram Chand vs.
Union of India, (1994) 1 SCC 44 and State of U.P. and Ors. vs.
Manohar, (2005) 2 SCC 126, it has been held that when the State fails
and is negligent in performing its statutory duties, the delay and inaction
furnishes a cause of action and gives a right to the citizen to invoke
jurisdiction of the Court. When an authority fails to perform its duty
LPA 548/2010 Page 9 of 17
within reasonable time, delay and laches cannot be a ground to deny relief
to a petitioner who has suffered injury and harm because of the delay and
non-performance of duty on the part of the authorities. Similarly, the State
being a virtuous litigant should meet the genuine claims and not deny
them for want of action on their part. At the same time, the question of
prejudice and creation of third party right or interest is an important and
relevant aspect which has to be examined by the Court when the question
of delay arises. Laches also obscures facts, encourages dubious claims and
prevents fair and just adjudication by the Courts. Often relevant and
material evidence and details go missing or are not traceable. These result
in and cause prejudice to the case and defence of the respondent/State.
14. The gaps and hiatus on the part of the respondent have been
referred to above. They are from the period 1976 to 1986, then from
1986/1988 to 1991, then till 1998/1999 and lastly between 2000 till 2003.
What is relevant and material is that the respondent, in order to secure
allotment, was required to produce original papers as well as pay money
in the form of damages to secure allotment. As per the calculations made
by the appellant in 1986, the respondent was liable to pay Rs.5 and Re.1
per square meter for area under commercial and residential use
respectively during the period 1st January, 1969 to 16th May, 1976. The
LPA 548/2010 Page 10 of 17
said amount works out to Rs.13,428/- (Rs.11,190 + Rs.2,238) which may
look paltry or small today but during the relevant period i.e. in 1976, it
was a reasonable amount. Amount was chargeable/payable for alternative
allotment. Doubts and questions about the letter dated 26th July, 1976
have been mentioned above. The original file as was prepared in 1976 is
not traceable and available. In 1986 when the respondent had approached
the authorities for allotment of the commercial plot doubts were expressed
about the respondent’s entitlement/claim due to the time gap and missing
file. Similarly, doubts were also raised about the letters produced by him
and the medical certificates. In the noting dated 4th August, 1986, it is
recorded that the age of the respondent mentioned in the medical reports
submitted by the respondent is 26 years, whereas the age mentioned in the
ration card was 54 years. The respondent had stated that he had met with
an accident and suffered major injuries and had relied upon reports of
1977, January, 1978 and one report of July, 1983. This hardly explains
the long hiatus and the delay.
15. As noticed above, the original file in the case of the respondent as
was prepared in 1976 is missing. We do not know what ensued and
transpired after the purported letter dated 26th July, 1976 was written by
the authorities to the respondent. The letter dated 26 th July, 1976 refers to
LPA 548/2010 Page 11 of 17
industrial plot at Shahzada Bagh and a tenement at Inderlok. The
respondent claims that he was allotted a tenement at Inderlok
(subsequently an MIG flat was allotted at Sarai Khalil, Sadar Bazar,
Delhi) but not the plot. The respondent it appears had lost interest in the
commercial plot because of the quantum of damages he had to pay as a
precondition. The delay being substantial and as the original file is not
traceable we do not know what exactly had happened but the respondent
was silent and silence indicates unresponsiveness and unwillingness on
the part of the respondent to comply with his obligations. The present case
is not of mere inaction or failure on the part of the authorities (which for
want of and missing file remains uncertain) but reluctance and intention
of the respondent at the given point of time not to claim any right on the
industrial/commercial plot.
16. In case of delay and laches in filing a writ petition, the court is
required to consider the facts and situation in each case, to decide whether
the petitioner therein has chosen to sit over the matter and has woken up
to gain any extra advantage. Other aspects which have been examined
have been referred to above. In Dehri Rohtas Light Rly. Co. Ltd. vs.
District Board, Bhojpur, (1992) 2 SCC 598, the following test has been
laid down by the Supreme Court:
LPA 548/2010 Page 12 of 17
“13. The rule which says that the Court
may not enquire into belated and stale claim is
not a rule of law but a rule of practice based on
sound and proper exercise of discretion. Each
case must depend upon its own facts. It will all
depend on what the breach of the fundamental
right and the remedy claimed are and how delay
arose. The principle on which the relief to the
party on the grounds of laches or delay is denied
is that the rights which have accrued to others by
reason of the delay in filing the petition should
not be allowed to be disturbed unless there is a
reasonable explanation for the delay. The real
test to determine delay in such cases is that the
petitioner should come to the writ court before a
parallel right is created and that the lapse of time
is not attributable to any laches or negligence.
The test is not to physical running of time.
Where the circumstances justifying the conduct
exists, the illegality which is manifest cannot be
sustained on the sole ground of laches. The
decision in Tilokchand case relied on is
distinguishable on the facts of the present case.
The levy if based on the net profits of the
railway undertaking was beyond the authority
and the illegal nature of the same has been
questioned though belatedly in the pending
proceedings after the pronouncement of the High
Court in the matter relating to the subsequent
years. That being the case, the claim of the
appellant cannot be turned down on the sole
ground of delay. We are of the opinion that the
High Court was wrong in dismissing the writ
petition in limine and refusing to grant the relief
sought for. We however agree that the suit has
been rightly dismissed.”
17. In State of Maharashtra vs. Digambar, (1995) 4 SCC 683, the
question of delay and laches was examined and it was held as under:-
LPA 548/2010 Page 13 of 17
“14. How a person who alleges against the
State of deprivation of his legal right, can get
relief of compensation from the State by
invoking writ jurisdiction of the High Court
under Article 226 of the Constitution even
though, he is guilty of laches or undue delay is
difficult to comprehend, when it is well settled
by decisions of this Court that no person, be he a
citizen or otherwise, is entitled to obtain the
equitable relief under Article 226 of the
Constitution if his conduct is blameworthy
because of laches, undue delay, acquiescence,
waiver and the like. Moreover, how a citizen
claiming discretionary relief under Article 226 of
the Constitution against a State, could be
relieved of his obligation to establish his
unblameworthy conduct for getting such relief,
where the State against which relief is sought is
a Welfare State, is also difficult to comprehend.
Where the relief sought under Article 226 of the
Constitution by a person against the Welfare
State is founded on its alleged illegal or
wrongful executive action, the need to explain
laches or undue delay on his part to obtain such
relief, should, if anything, be more stringent than
in other cases, for the reason that the State due to
laches or undue delay on the part of the person
seeking relief, may not be able to show that the
executive action complained of was legal or
correct for want of records pertaining to the
action or for the officers who were responsible
for such action not being available later on.
Further, where granting of relief is claimed
against the State on alleged unwarranted
executive action, is bound to result in loss to the
public exchequer of the State or in damage to
other public interest, the High Court before
granting such relief is required to satisfy itself
that the delay or laches on the part of a citizen or
any other person in approaching for relief under
LPA 548/2010 Page 14 of 17
Article 226 of the Constitution on the alleged
violation of his legal right, was wholly justified
in the facts and circumstances, instead of
ignoring the same or leniently considering it.
Thus, in our view, persons seeking relief against
the State under Article 226 of the Constitution,
be they citizens or otherwise, cannot get
discretionary relief obtainable thereunder unless
they fully satisfy the High Court that the facts
and circumstances of the case clearly justified
the laches or undue delay on their part in
approaching the Court for grant of such
discretionary relief. Therefore, where a High
Court grants relief to a citizen or any other
person under Article 226 of the Constitution
against any person including the State without
considering his blameworthy conduct, such as
laches or undue delay, acquiescence or waiver,
the relief so granted becomes unsustainable even
if the relief was granted in respect of alleged
deprivation of his legal right by the State.”
18. It was further observed in paragraph 23:-
“23. Therefore, where a High Court in
exercise of its power vested under Article 226 of the
Constitution issues a direction, order or writ for
granting relief to a person including a citizen without
considering his disentitlement for such relief due to
his blameworthy conduct of undue delay or laches in
claiming the same, such a direction, order or writ
becomes unsustainable as that not made judiciously
and reasonably in exercise of its sound judicial
discretion, but as that made arbitrarily.”
LPA 548/2010 Page 15 of 17
19. It is also well settled that repeated representation do not explain
delay in approaching the Court. In Karnataka Power Corporation Ltd. vs.
K. Thangappan, (2006) 4 SCC 322, it has been held as under:-
“6. Delay or laches is one of the factors which
is to be borne in mind by the High Court when
they exercise their discretionary powers under
Article 226 of the Constitution. In an appropriate
case the High Court may refuse to invoke its
extraordinary powers if there is such negligence
or omission on the part of the applicant to assert
his right as taken in conjunction with the lapse of
time and other circumstances, causes prejudice
to the opposite party. Even where fundamental
right is involved the matter is still within the
discretion of the Court as pointed out in Durga
Prashad v. Chief Controller of Imports and
Exports. Of course, the discretion has to be
exercised judicially and reasonably.
10. It has been pointed out by this Court in a
number of cases that representations would not
be adequate explanation to take care of delay.
This was first stated in K.V. Rajalakshmiah Setty
v. State of Mysore. This was reiterated in
Rabindranath Bose case by stating that there is a
limit to the time which can be considered
reasonable for making representations and if the
Government had turned down one representation
the making of another representation on similar
lines will not explain the delay. In State of
Orissa v. Pyarimohan Samantaray making of
repeated representations was not regarded as
satisfactory explanation of the delay. In that case
the petition had been dismissed for delay alone.
LPA 548/2010 Page 16 of 17
20. Accordingly, the appeal is allowed and the impugned decision
dated 23rd December, 2009 passed in W.P.(C) No. 819/2009, Mohd.
Ismail Vs. Slum & JJ Department (MCD) is set aside. The said writ
petition will be treated as dismissed. In facts of the case, there will be no
orders as to costs.
(SANJIV KHANNA)
JUDGE
( DIPAK MISRA )
CHIEF JUSTICE
25th July, 2011
NA/KKB
LPA 548/2010 Page 17 of 17