Delhi District Court
Sh. Rajesh Chawla vs Delhi Development Authority on 14 November, 2017
IN THE COURT OF SH. SANJAY KUMAR
ADDITIONAL DISTRICT JUDGE 02, WEST DISTRICT,
TIS HAZARI COURTS: DELHI
MCA No. 05/17/16
NEW No. 08/17
Sh. Rajesh Chawla
S/o. Late Sh. Shyam Sunder Chawla
R/o. F305, First Floor, Sudershan Park
New Delhi - 110015. . . . . Appellant
versus
1. Delhi Development Authority
Through its vice Chairman
INA Market, Vikas Sadan
New Delhi.
2. Union of India
Through Land & Development Office
Nirman Bhavan, New Delhi.
3. North Delhi Municipal Corporation
Through its Commissioner
Dr. S. P. M. Civic Centre
Minto Road, New Delhi - 110002.. . . . Respondents
JUDGMENT
1. The instant appeal is directed against order dated 04.06.2016 passed by Ld. Sr. Civil Judge in Civil Suit bearing No.126/2016, vide which Ld. Trial Court dismissed the MCA No. 05/17/16 & Rajesh Chawla vs. DDA & Ors. Page No.1of28 New No. 08/17 application moved under Order 39 Rule 1 & 2 CPC by the plaintiff/ appellant herein.
2. Brief facts necessary for disposal of instant appeal are that appellant has filed a suit bearing CS No.126/16 for permanent and mandatory injunction and declaration seeking regularization of coal depot site admeasuring 150 sq. yds., situated at site bearing No. 5187 (shop No.1), Near Ganda Nallah, in ward: Ramesh Nagar Bazaar, New Delhi or in alternate grant an alternative site of same size in lieu of the aforesaid coal depot site in view of policy of respondent no.2 dated 27.09.1966 which has been applied to similarly situated persons who have been granted regularization of existing sites or allotted alternative site.
3. It is further stated that Late Sh. Shyam Sunder Chawla, father of the appellant along with his family were the displaced person from Pakistan having migrated to India consequent upon the partition of the country in the year 1947, occupied the vacant land near House No. 33, IBlock, Kirti Nagar, New Delhi. It is further stated that at that time, neither respondent no.1 nor respondent no.3 were in existence and the said plot of land wholly and solely belonged to respondent no.2. It is further MCA No. 05/17/16 & Rajesh Chawla vs. DDA & Ors. Page No.2of28 New No. 08/17 stated that initially Late Sh. Shyam Sunder Chawla started running the coal depot alongwith one Sh.Harbans Lal under the name and style of Shyam Sunder Coal Depot however since the year 1957, he started running the said coal depot under the name and style of M/s. Harbans Lal Shyam Sunder through the said plot of land. It is stated that later on, Late Sh. Shyam Sunder raised the tin sheds for storage and protection of the said article and the coal depot of the appellant is nearby the coal depot of site of Smt. Shanti Devi, Sh.Surinder Mohan Chopra, Sh. Mahender Sahni and many other coal depots, who have been running coal depots prior to 01.07.1960.
4. It is further stated that in the year 1961, assurance was given by the Ministry of Works, Production and Supply and on account of policy decision of Government of India that the displaced persons without being authorized to do so who have occupied public land or constructed any building on such land, shall not be removed unless alternative land is provided to them. It is stated that in the year 196465, respondent no.3 has started charging the tehbazari / license fee for the coal depot site on behalf of the respondent no.2. It is stated that respondent no.3 issued the tehbazari in favour of Sh. Harbans Lal, for which purposes Late Sh. Harbans Lal and Late MCA No. 05/17/16 & Rajesh Chawla vs. DDA & Ors. Page No.3of28 New No. 08/17 Sh.Shyam Sunder Chawla visited the defendant no.3 for mutation of tehbazari in the name of Harbans Lal Shyam Sunder Chawla and even written letters to respondent no.3. It is further stated that the tehbazari / licence fee was levied only with respect of trading / selling of coal / firewood and etc. and has nothing to do with the occupation of land. It is stated that charging of tehbazari fee was only qua the trade and does not vest the title of the land on which the trade is being carried out and the respondent no.3 does not and could not have sealed the premises of the appellant as valuable rights under the policy document dated 27.09.1966 of the respondent no.2 had accrued in favour of the appellant. It is stated that the policy in no unambiguous terms seeks to regularize the plot of land on which the coal depot trade was being carried out and that the policy document of the Government of India is specific to the running of the coal depot on the government land and not for any other trade. Further it is stated that the policy was in consonance to the assurance granted earlier and that the respondent no.2 in its office order dated 27.09.1966 has further directed the respondent no.3 to pass / deposit the tehbazari collected by them with the respondent no.2. It is stated that this fact exfacie shows that the respondent no.3 has no rights / title / interest over the premises in question and could not have MCA No. 05/17/16 & Rajesh Chawla vs. DDA & Ors. Page No.4of28 New No. 08/17 sealed the premises in question and the copies of tehbazari / license fee receipts are filed alongwith the list of documents.
5. It is further stated that in the year 1966, on the basis of a survey conducted, the Ministry of Works Housing and Urban Development, Land and Development Office, passed an office order dated 27.09.1966 and decided that fuel depot existed on the government land should not be treated as unauthorized occupants. Subsequently, vide memorandum No.LIII/8/2(12)/67 dated 23.09.1969, the government passed the direction that the fuel depot holders who were running the fuel depots unauthorizedly on government land before 1 st July 1960 will be allotted an alternative site subject to payment of damages in respect of the site which was in their unauthorized occupation. It is stated that in the year 1965, the coal depot site of the appellant reallocated from site situated near House No. 33, IBlock, Kirti Nagar, New Delhi to the present site admeasuring 150 sq. yrds. Situated at site bearing No. 5187 (Shop No.1), Near Ganda Nallah, in ward : Ramesh Nagar Bazaar, New Delhi due to some development in the area. It is stated that appellant / his predecessors were/are entitled for regularization / shifting of the coal depot on an alternative plot of land recognized the right of the plaintiff to be relocated as MCA No. 05/17/16 & Rajesh Chawla vs. DDA & Ors. Page No.5of28 New No. 08/17 per the mandate of the policy document dated 27.09.1966 of the respondent no.2. It is stated that the shifting cannot in any manner take away the right of the appellant which came to be crystallized under the policy document dated 27.09.1966 of the respondent no.2. It is stated that appellant / his predecessor had started running the coal depot and selling the coal, wood, soft coke, hard coke, etc. since 1950 i.e. much before the pre 1962 commercial establishment till the time the same got sealed by the respondent no.3 forcefully, illegally and arbitrary. It is stated that the coal depot of the appellant is also protected under the Master Plan of Delhi 2021, and there is no policy affecting / restricting coal trade in Delhi. It is stated that The Government of India, Ministry of Works and Housing vide letter No. J13037/113/74/UDI/UD IIB dated 16.02.1977 has further laid down policy guidelines for regularization of unauthorized colonies in Delhi which included residential as well as commercial land/structures. As per the said policy, respondent no.1/DDA had been regularizing land of various persons in Delhi including coal depots runs on such land. It is stated that the cutoff at that stage was that of year 1977 which means that the persons who have been in occupation of land before 1977 were/are entitled for regularization of their land. Appellant's case is covered under that policy guideline as well and pursuant MCA No. 05/17/16 & Rajesh Chawla vs. DDA & Ors. Page No.6of28 New No. 08/17 to said policy, the respondent no.1 has executed leases in favour of one Sh.R.P.Singh in respect of plot No. 92/C, Lajpat Nagar 11, Vinoba Puri, New Delhi; Sh. Sanjiv Kumar in respect of plot No. R538, New Rajinder Nagar, New Delhi and Sh. Baldev Raj in respect of plot No. R537, New Rajinder Nagar, New Delhi.
6. It is stated that thereafter, on 21.06.1982, Late Sh.Harbans Lal and Late Sh. Shyam Sunder Chawla vide deed of dissolution have dissolved the partnership and Late Sh.Harbans Lal transferred all of his shares in favour or Late Shri Shyam Sunder Chawla. It is further stated that since then, Late Sh. Shyam Sunder Chawla / his successors continued to run the coal, firewoood, soft coke, hard coke, etc. till the time respondent no.3 has illegally and arbitrary sealed the premises of the appellant without having any locus standi. It is stated that the appellant / his predecessors thereafter requested the respondent no.3 to transfer the tehbazari rights in favour of Late Sh. Shyam Sunder Chawla alone.
7. It is further stated that sometime in the year 1982, the said property was transferred to DDA by the Government of India, Ministry of Supply and Rehabilitation (Department of Rehabilitation) Union of India, Land and Development Officer, MCA No. 05/17/16 & Rajesh Chawla vs. DDA & Ors. Page No.7of28 New No. 08/17 Ministry of Works and Housing. Thus, respondent no.1 is successor in interest of respondent no.2 and hence, respondents no.1 & 3 are bound by the decisions of its predecessor in interest i.e. respondent no.2. It is further stated that when the land in question was transferred to respondent no.1 by the respondent no.2 and appellant/his predecessors were/are in possession of the said property.
8. It is stated that the Hon'ble High Court vide its judgment dated 27.05.1994 passed in C.W.P. No. 3645/1993 (K. L. Harjai vs. Union of India & Ors.) directed the authorities to consider the case of Sh. K. L. Harjai in the light of aforesaid Memorandum dated 19.06.1969 and clearly establish the fact that the respondents no. 1, 2 and 3 are bound by the policy document dated 27.09.1966 of the respondent no.2. It is further stated that in any event, respondent no.3 has no business in interfering with the possession of the appellant in any manner whatsoever and it is surprising that the respondent no.3 has been repeatedly trying to usurp the right of the appellant when they have no lien or right over the land itself.
9. In another case on 09.01.1996 when the Writ Petition bearing WP(C) No. 4677/1985 titled M. C. Mehta vs. Union of MCA No. 05/17/16 & Rajesh Chawla vs. DDA & Ors. Page No.8of28 New No. 08/17 India & Ors. listed for hearing before the Hon'ble Supreme Court of India, ld. Counsel appearing on behalf of respondent no.2 had placed on record the letter dated 07.05.1995 addressed to Smt. Prakash Kaur conveying that it was decided to allot her a fuel depot admeasuring 61.504 sq. meter in the shopping centre, M. B. Road, Sector1, New Delhi in lieu of site unauthorizedly occupied by her at Mandir Marg, New Delhi. It is further stated that Sh. Shyam Sunder Chawla had passed away on 30.01.2001 and the tehbazari rights were mutated by the respondent no.3 in favour of appellant and it was purely for the purposes of running the trade and license granted thereunder and the same did not take away the rights of appellant as envisaged in policy document of respondent no.2 dated 27.09.1966 which was never revoked in any manner. It is stated that the policy document dated 27.09.1966 of the respondent no.2 confers the right of the coal depot owner to have their plot regularized and the same has been done by the respondent no.1 in many similar cases. It is stated that after the demise of Late Sh. Shyam Sunder Chawla, all other legal heirs relinquished their rights / title / interest / claim over the said coal depot in favour of the appellant and the appellant started running the coal depot. It is further stated that pursuant to the policies formulated by the Union of India, respondent no.2 has MCA No. 05/17/16 & Rajesh Chawla vs. DDA & Ors. Page No.9of28 New No. 08/17 filed its counter affidavit in Writ Petition WP(C) No. 896/2007 wherein it is stated that the Government of India vide its order dated 27.09.1966 in consultation with Ministry of Works and Housing and Urban Development, had decided that the Fuel Depot holder should not be treated as unauthorized occupants.
10. It is further stated that since 10.04.2008, the sale of coal has been decontrolled by virtue of order passed by the Government of NCT bearing F. No. 3(4)/2006/FNS/P&C and that in the year 2009, on account of policies announced by Union of India and statement given by the Land and Development / predecessor in interest of the suit property, respondent no.1 had regularized the coal depot site admeasuring 146 sq. yrds in area near Nallah Barapullah, Site No. 8, Nizamuddin East in favour of petitioner therein i.e. Smt. Champa Devi. It is stated that on 06.07.2011, respondent no.3 framed the policy, circular No. AO/CL&EC/2011/87 in connection with the site for coal depot on tehbazari basis on Municipal land wherein respondent no.3 has stated that the business of coal is no longer permissible and the tehbazari site measuring 7' x 5' preferably in areas near their existing coal depots. It is stated that the policy document dated 27.09.1966 of the respondent no.2 cannot be rendered otiose by the policy MCA No. 05/17/16 & Rajesh Chawla vs. DDA & Ors. Page No.10of28 New No. 08/17 of the respondent no.3 and in case of any conflict, the policy document dated 27.09.1966 of the respondent no.2 shall prevail over the policy of the respondent no.3. It is stated that it is impressed by the respondent no.3 that the said policy / circular was framed / formulated pursuant to the directions of Hon'ble High Court of Delhi in appeal bearing LPA No. 240/2006 which was later on clarified that no such direction was even passed by the Hon'ble High Court. The said LPA arose out of Writ Petition (C) No. 6827/1999 which was allowed vide order dated 22.11.2005. It is further stated that respondent no.3 impressed that the said policy was framed pursuant to directions of Hon'ble High Court of Delhi in appeal bearing LPA No.240/ 2006 titled MCD vs. Sadhna Grover but no such direction was passed as is evident from the order dated 04.05.2012 passed by Hon'ble High Court. It is further stated that policy of respondent no.3 is qua sanction of license whereas policy dated 27.09.1966 of respondent no.2 relates to the regularization of the coal depot as per requisites contained in the same.
11. It is further stated that genesis of formulation of policy by the respondent No.3 was the LPA No. 240/2006 however the applicability of the policy cannot be determined in isolation but MCA No. 05/17/16 & Rajesh Chawla vs. DDA & Ors. Page No.11of28 New No. 08/17 keeping in view the policy document dated 27.09.1966 of the respondent No.2 and rights of the parties crystallized under the said policy. The policy of the respondent No.3 is qua sanction of license whereas the policy document dated 27.09.1966 of the respondent No.2 relates to the regularization of the coal deport plot. It is further stated that said LPA had arisen out of WP (C) No. 6827/1999 titled Sadhna Grover Vs. MCD & Ors wherein Smt. Sadhna Grover claimed that in 1969, Sh. Madan Lal Grover was alloted a plot measuring 200 Sq. Yards on tehbazari at Rs. 20 per month for use as a coal depot and that her father in law expired on 19.07.1979 and thereafter DDA had demolished the structure built up on the said plot. She further prayed DDA and MCD be restrained from dispossessing her from the said land and the MCD contended that (I) there was no policy to issue tehbazari sites for coal depots and only tehbazari sites of an area admeasuring 6 feet by 4 feet had been granted (ii) no tehbazari license was issued to Shri Madan Lal Grover (predecessor in interest). The said Writ Petition was allowed vide order dated 22.11.2005. It is further stated that said order dated 22.11.2005 was challenged by respondent No.3 before Hon'ble High Court and submission of Sh.B.N.Singh, Addl. Deputy Commission (Land & State) was recorded to the fact that "the only problem in the aforesaid MCA No. 05/17/16 & Rajesh Chawla vs. DDA & Ors. Page No.12of28 New No. 08/17 procedure is that in 1995, a policy decision was taken by that Delhi Administration that neither fresh license would be issued for coal depots nor would existing licenses be renewed". It is further submitted that at no point of time Hon'ble High Court has directed to frame a policy as regards coal depot holders and had instead only asked the MCD to place on record the copy of the policy (s) were in existence at that point of time.
12. It is further submitted that stand taken by the respondent No.3 that sale of coal has become impermissible in Delhi since 1994/1995 is belied in view of the fact that in WP (C) No. 6848/2000 - M/s. Pappu Coal Master & Ors. Vs. The Commissioner Food and Civil Supplied and Consumer Affairs, a direction was sought against the respondent for renewal of coal import license issued under Delhi Control Order, 1975 as the respondent had failed to renew the same and the said Writ Petition was disposed off with the direction that respondent shall not cause any obstruction on account of nonrenewal of coal license and in case any decision is taken by the respondent in future, which requires license being obtained, adequate notice of the same shall be given to the petitioners.
MCA No. 05/17/16 & Rajesh Chawla vs. DDA & Ors. Page No.13of28 New No. 08/17
13. In LPA No. 58/2009 - Champa Devi Vs. Union of India & Anr., it was stated by DDA that the Committee finally recommended regularization of coal depot in favour of Champa Devi on 10.09.2009. On 28.05.2014, MCD has renewed the tehbazari license of one M/s. Shiv Dayal Bhagat Ram situated at 5131, Main Bazar, Pahar Ganj for trading and storage of wood and coal, which is valid till 31.03.2017. It is further stated that respondent no.3 on various occasions i.e. 27.03.2006, 28.02.2007 and 28.03.2008 has raised demand to the appellant for payment of tehbazari. It is further stated that the respondent no.1 vide its reply received qua an RTI application filed to know about the ownership of the suit property, it was revealed that the land in question along with other land were transferred to respondent no.1 by Ministry of Rehabilitation, L&DO under a package deal. Hence, respondent no.3 has no right/ title in respect of the land in question.
14. It is further stated that appellant was shocked to receive a notice dated 11.11.2011 from the office of the respondent No.3 stating therein that the Tehbazari site measuring 150 sq. yards for running of a coal deposit in question was allotted by the respondent No.3 whereas the fact remains that the respondent No.3 at no point of time was having any title or interest in the MCA No. 05/17/16 & Rajesh Chawla vs. DDA & Ors. Page No.14of28 New No. 08/17 land in question. It was further stated that the Government of NCT of Delhi has stopped running the coal depot and further banned coal distribution under Public Distribution system since 1994 and therefore the public purpose in respect of such space of tehbazari has been demolished. It was further stated that since the business of coal is no longer permissible and relevant in the present context, the space allotted for coal depot for the purpose of storage and sale of coal is required to be retrieved and these tehbazari holders or their legal successors will be offered tehbazari sites measuring 7x5 sq. feet. preferably near the existing sites falling within the same zone or nearby areas. It is further stated that respondent No.3 could at best claim tehbazari license fee, but at no point of time did have any right to "reclaim" possession of the land as the respondent No.3 never had any title over the land.
15. It is further stated that in Resolution dated 16.03.2011 there is no mention as to why the site allotted to the appellant was to be taken over and an alternative site of a much lesser area was to be alloted. The Resolution also did not stipulate the reasons as to why said site allotted to the appellant was being taken over. However, in the Circular dated 06.07.2011 reasons for taking over the sites which were earlier not there in the MCA No. 05/17/16 & Rajesh Chawla vs. DDA & Ors. Page No.15of28 New No. 08/17 Resolutions dated 16.03.2011 and 27.05.2011 were sought to be given that since the business of coal is no longer permissible and relevant in the present context the tehbazari holders or their legal successors should be offered tehbazari site measuring 7' x 5' preferably in areas near their existing coal depot sites falling in the same zone or nearby zones. It is submitted that the said fact amounts to supplanting reasons after a decision had already been taken, which is impermissible in law. There is no mention of the policy document dated 27.09.1966 of the respondent No.2 and is silent on rationale being reallotment of smaller size of tehbazari sites. The action has been taken in haste and there is no distinguishing between those who are covered under the policy document dated 27.09.1966 of the respondent No.2 and those who are beyond the cutoff date as per the mandate of the policy document dated 27.09.1966 of the Respondent No.2. The appellant cannot be treated as Tehbazari holder as the rights of the appellant preexisted the formation of respondent No.3 itself. Further the fee paid under the tehbazari was a license fee for running of the coal depot and not for allotment of land in question, which stood crystallized vide the policy document dated 27.09.1966 of the respondent No.2.
MCA No. 05/17/16 & Rajesh Chawla vs. DDA & Ors. Page No.16of28 New No. 08/17
16. It is further stated that on 16.11.2011 appellant filed detailed reply to the show cause notice dated 11.11.2011 thereby requesting them to consider and regularize his coal depot and thereafter, respondent no.3 passed an order dated 16.11.2011 on the show cause notice dated 11.11.2011 thereby respondent no.3 has cancelled the licence of the appellant and also directed to handover the possession of the same. Feeling aggrieved by the said illegal actions on the part of the respondents, the appellant filed a writ petition and informed about the same to the respondent No.3 and requested to not to take any coercive steps / action pertaining to the coal depot site till the pendency of the writ petition. It is further stated that on 19.06.2012, respondent no.3 despite of not having any right / title / lien over the property in question issued a frivolous notice for vacation of the suit property.
17. It is further stated that in June 2012, the respondent No.3 has sealed the coal depot of the appellant in the garb of order dated 16.11.2011. Thereafter, the appellant had requested the respondent No.3 to deseal the coal depot site and allow / permit to carry on her business. The respondent No.3 did not take any steps and the appellant filed an application before the Hon'ble High Court seeking desealing of the coal depot MCA No. 05/17/16 & Rajesh Chawla vs. DDA & Ors. Page No.17of28 New No. 08/17 alongwith his trade license under a bonafide faith and belief that the same is a legal and genuine document and valid till 2013. It is stated that on getting to know about the fact that the said trade licence was a forged document, he alongwith other coal depot holder lodged a complaint and FIR was registered under the relevant Sections against Sh. Keshave Goel. The Hon'ble High Court of Delhi vide its common order dated 27.07.2015 dismissed the petition filed by the appellant alongwith other petitions. It is further stated that being aggrieved by the judgment dated 27.07.2015, appellant alongwith other petitioners therein filed an appeal bearing LPA No. 592/2015 before the Division Bench of Hon'ble High Court of Delhi. It is further stated that on 03.09.2015, when the matter was listed for hearing before Hon'ble High Court of Delhi was pleased to pass an interim order.
18. It is further stated that in the interregnum, appellant vide his letter dated 24.11.2015 has once again requested the respondent no.1 and 2 to regularize the coal depot site measuring 150 sq. yards situated at site No. 5187 (shop No.1) at Coal Depot, Near Ganda Nallah, Kirti Nagar in ward, Ramesh Nagar Bazaar, New Delhi or in alternative allot an alternative site of equal side either in Kirti Nagar or at any other nearby MCA No. 05/17/16 & Rajesh Chawla vs. DDA & Ors. Page No.18of28 New No. 08/17 area.
19. It is stated that on 04.01.2016, Hon'ble High Court of Delhi was pleased to allow the appeal being LPA No. 592/2015 filed by the appellant and further granted liberty to the appellant that in case he is in position to prove the better title, she would be at liberty to take appropriate remedies before the Ld. Civil Court and the observation made in the said judgment will have no bearing thereon. It is stated that the appellant filed the suit in terms of the liberty granted by the Hon'ble High Court in appeal bearing LPA No. 592/2015 filed by the appellant to approach the Ld. Civil Court alongwith an application under Order 39 rule 1 & 2 CPC thereby seeking interim injunction. Thereafter, Ld. Senior Civil Judge vide its order dated 04.06.2016 dismissed the said application contrary to facts.
20. The appellant has assailed the impugned order and taken grounds that the impugned order is legally unsustainable in the eyes of law in as much as the same has been passed by the Ld. Senior Civil Judge without application of mind against the law and without perusing the record. It is stated that the Ld. Senior Civil Judge has completely misguided himself by getting into MCA No. 05/17/16 & Rajesh Chawla vs. DDA & Ors. Page No.19of28 New No. 08/17 the issue of the tehbazari and passed an impugned order dated 04.06.2016 without appreciating the fact that issue involved in the suit is only limited to adjudication of title of suit land and even otherwise, the Policy of the respondent no.3 at best can be made applicable to the individuals running coal depot licensee who have obtained the same, post the cutoff date declared in the policy document dated 27.09.1966 and 23.09.1969 of respondent no.2. It is stated that the Ld. Senior Civil Judge has failed to appreciate the fact that the policy documents dated 27.09.1966 and 23.09.1969 of the respondent no.2 clearly and categorically confers the right of the appellant alongwith other coal depot owner to have their plot regularized and the same has been done by the respondent no.1 in many similar cases and there is no reasons as to why the same treatment should not be given to the appellant.
21. It is stated that Ld. Sr. Civil Judge has failed to appreciate the fact that the transfer and occupancy of the suit land has been regularized and governed by the aforesaid policy decision of the Government of India passed in the years 1966 and 1969, thus, simply by turning a blind eye towards the said policy decision of the Respondent no. 2, the Respondent no. 1 & 3 cannot get away with its antics and tomfoolery under the garb MCA No. 05/17/16 & Rajesh Chawla vs. DDA & Ors. Page No.20of28 New No. 08/17 of the several ultravires resolutions passed by it pertaining to the closure of fuel depots. It is stated that Ld. Senior Civil Judge has failed to appreciate the fact that the Government of India, Ministry of Health and Family Planning, Works Housing & Urban Development, Land and Development Office vide its memorandum No. LIII/8/2(12)/67 dated 23.09.1969 had passed the direction that the fuel depot holders who were / are running the fuel Depots unauthorizedly on government land before the 1st July, 1960 will be allotted an alternative site subject to payment of damages in respect of the site which was / is in their unauthorized occupation, therefore the appellant is entitled for regularization and / or allotment of alternative plot.
22. It is stated that Ld. Senior Civil Judge did not appreciate the fact that the respondent no.1 has been following an arbitrary practice of pick and choose, rather than following the uniform application of the policy document dated 27.09.1966 of the respondent no.2 and regularize fuel depots. It is stated that Ld. Senior Civil Judge has failed to appreciate the fact that the cases averred in the present appeal clearly establish that the policy document dated 27.09.1966 of the respondent no.2 has been given effect in many similar cases, but the appellant has MCA No. 05/17/16 & Rajesh Chawla vs. DDA & Ors. Page No.21of28 New No. 08/17 been denied the benefit of the policy document dated 27.09.1966 of the respondent no.2.
23. It is stated that Ld. Senior Civil Judge has failed to appreciate the fact that the regularization of coal depot plot has been purely on account of and in terms of the policy /memorandum announced and issued by the Land and Development Authority dated 27.09.1966 and the deliberate noncompliance of the policy document dated 27.09.1966 by the respondent no.1 and 2 and moreover unnecessary and arbitrary action on part of the respondent no.3 have caused severe prejudice to appellant. It is stated that Ld. Senior Civil Judge has failed to appreciate the fact that the said coal depot site is the sole source of earning livelihood for the appellant and therefore, an interim protection ought to be granted.
24. It is stated that it is exfacie clear that the understanding of tehbazari / trade license of the respondent no.3 is misconstrued and illfounded, as the same is only a license to carry on a trade and that no right / title / lien / interest is created in favour of the appellant only by issuance of the tehbazari / trade license to the occupant or the trader. It is stated that Ld. Senior Civil Judge has failed to appreciate the MCA No. 05/17/16 & Rajesh Chawla vs. DDA & Ors. Page No.22of28 New No. 08/17 fact that the suit land was not allotted to the appellant by the respondents no. 1 & 3 and in fact respondent no.3 has never had anything to do with the suit land.
25. It is stated that Ld. Senior Civil Judge has failed to appreciate the fact and also it is very much clear that the scope of the respondent no.3 is only limited to the extent of issuance of trade licenses and nothing therein shall be construed as creation of right / title / interest / lien over the property on which the trade is being carried out. It is stated that Ld. Senior Civil Judge has failed to appreciate the fact that the respondents have been regularizing or granting the alternative sites to the coal depot owners based on their whims and fancies. It is stated that Ld. Senior Civil Judge has failed to appreciate the fact that the suit bearing No. 126/2016 seeking permanent and mandatory injunction and declaration was filed by the appellant in terms of the liberty granted by the Hon'ble High Court of Delhi in appeal bearing L.P.A. No. 592/2015 filed by the appellant and the issue of tehbazari has no relevance with the adjudication of the said suit.
26. It is stated that Ld. Senior Civil Judge has failed to appreciate the fact that the policy document dated 27.09.1966 MCA No. 05/17/16 & Rajesh Chawla vs. DDA & Ors. Page No.23of28 New No. 08/17 of the respondent no.2 clearly and categorically confers the right of the coal depot owner to have their plot regularized and the same has been done by the respondent no.1 in many similar cases, and there is no reasons as to why the same treatment should not be given to the appellant. It is stated that Ld. Senior Civil Judge has failed to appreciate the fact that in any event respondent no.3 has no business interfering with the possession of the appellant in any manner whatsoever. It is rather surprising that the respondent no.3 has been repeatedly trying to usurp the right of the appellant when they have no lien or right over the land itself. The conduct of the respondent no.3 is highly illegal and arbitrary and goes contrary to the law of the land. It is stated that grave prejudice would be caused to the appellant if the present appeal is not allowed and also the appellant herein has a prima facie case in her favour. Appellant seeks that appeal may be allowed and the impugned order dated 04.06.2016 passed by the Ld. Senior Civil Judge be set aside and restrain the respondents from dispossessing the appellant from the suit site till the pendency of the suit bearing CS No. 126/2016 pending before the Ld. Senior Civil Judge.
27. No reply filed on behalf of respondents to the instant appeal.
MCA No. 05/17/16 & Rajesh Chawla vs. DDA & Ors. Page No.24of28 New No. 08/17
28. I have heard Sh. Sushant Kumar and Sh. Arjun Singh, ld. Counsel for the appellant; Sh. Anupam Sharma, ld. Counsel for the respondent no.1 / DDA; Sh. Rakesh Singh, ld. Counsel for respondent no.2 / UOI and Sh. Umesh Gupta, ld. Counsel for respondent no.3 / NDMC and perused the record and also gone through the written submissions filed on behalf of respondent no.1/ DDA.
29. The appellant set out the case that predecessor of the appellant migrated from Pakistan and occupied site admeasuring 150 sq. yds., situated at site bearing No. 5187 (shop No.1), Near Ganda Nallah, in ward: Ramesh Nagar Bazaar, New Delhi and initially the predecessor of the interest appellant started the trade of firewood and coal related items. It is mentioned that in the year 1961, assurance was given by the Ministry of Works, Production and Supply on the basis of policy decision of Government of India that displaced persons without being authorized and who occupied public land or constructed any building shall not be removed unless alternate land is provided. However, no such written assurance filed on record. The appellant referred to a policy of Ministry of Works Housing and Urban Development, Land and Development Office dated 27.09.1966 and office memorandum dated 23.09.1969.
MCA No. 05/17/16 & Rajesh Chawla vs. DDA & Ors. Page No.25of28 New No. 08/17 However, there is nothing on record that the said policy covered the appellant predecessor in interest. It is not disputed by the appellant that in the year 1982, the suit land was transferred to DDA by the Government of India, Ministry of Supply and Rehabilitation (Department of Rehabilitation) Union of India, Land and Development Officer, Ministry of Works and Housing. The appellant also referred to policy of Municipal Corporation of Delhi dated 06.07.2011 where it is alleged that site of coal depot on tehbazari were covered by the said policy with regard to the MCD lands.
30. It is admitted case of the appellant that he has no document to show the right, title or interest with respect to the suit property. There is no document on record to show that the appellant predecessor in interest was covered by the policy pertaining to the year 1969 and memorandum dated 06.07.2011. It is established on record that respondent no.1/DDA has not framed any policy with regard to tehbazari right or any other right with regard to the suit property since 1980. It is pertinent to mention here that the business of selling coal and related items has been closed by the Government of India in the year 1995. It is established on record that it is the policy matter of the DDA to continue tehbazari right or any MCA No. 05/17/16 & Rajesh Chawla vs. DDA & Ors. Page No.26of28 New No. 08/17 other right in respect of the suit land to the occupants.
31. The law is well established that the Court cannot interfere in the policy matter. Hence, in my considered opinion, the appellant has no prima facie right in respect of the suit land as the business of coal selling and related has already been banned by the Government of India. There is no document in favour of the appellant which creates any right, title or interest in respect of the suit land and more important is that there is no policy of the DDA in respect of the suit land to the occupants of coal depot. My view is further supported by the judgment of MCD vs. Sadhna Grover in LPA NO.240/ 2006 has now coal business is not permissible as per law and rehabilitation by the concerned Government Department as per the policy. The appellant is also not having the balance of convenience because in the absence of policy of DDA, no licensee right or any other kind of right protected by the Court. The appellant is not going to suffer any irreparable loss or injury as the coal business has already been banned by the Government of India for the last about 25 years.
32. In view of my above observation, I find no error or illegality in the impugned order dated 04.06.2016 passed by Ld. MCA No. 05/17/16 & Rajesh Chawla vs. DDA & Ors. Page No.27of28 New No. 08/17 Trial Court whereby the application under Order 39 rule 1 & 2 CPC was dismissed. Hence, I find no merit in the appeal and the same is accordingly dismissed.
It is made clear that the impression made herein shall not tantamount as a opinion on the merits of the case.
File be consigned to Record Room.
Announced in the open court today the 14th November, 2017.
(Sanjay Kumar) ADJ-02,West/Delhi 14.11.2017 MCA No. 05/17/16 & Rajesh Chawla vs. DDA & Ors. Page No.28of28 New No. 08/17