Delhi District Court
Sh. Shanta Prasad vs Delhi Development Authority on 30 January, 2020
1
IN THE COURT OF SH. BHARAT AGGARWAL, CIVIL JUDGE, DELHI
(WEST)02
SUIT NO.213/17
1. Sh. Shanta Prasad
S/o Sh. Babu Lal
R/o A19, Tagore Market, Opposite Kapoor Hardware,
Najafgarh Road, Kirti Nagar, New Delhi - 110015
2. Sh. Sat Narayan, S/o Sh. Algu Ram
(Through his LRs)
Sh. Vinod Kumar
S/o Late Sh. Sat Narayan,
R/o House No.50K, Surpur,
Kasheepur, Musafirkhana, Amethi, U.P.
3. Sh. Mohan Lal Moriya
S/o Ram Dev Moriya
R/o D132, J.J. Colony,
Hastsal Shiv Vihar, Uttam Nagar,
Delhi - 110059
4. Sh. Vijay Kumar
S/o Sh. Gainda Ram
R/o D138, J.J. Colony,
Hastsal Shiv Vihar, Uttam Nagar,
Delhi - 110059
5. Sh. Sobh Nath
S/o Sh. Babu Lal
R/o S197, Gali No.10,
Vikas Bagar, New Delhi - 110059
Suit No.213/17 Page1/20
2
6. Sh. Sat Paul
S/o Sh. Nirmal Dass
R/o Shanta Parsad A19, Tagore Market,
Opposite Kapoor Hardware, Najafgarh Road,
Kirti Nagar, New Delhi - 110015
7. Sh. Desh Raj
S/o Sh. Sarju Parsad
R/o D1321, J.J. Colony,
Hastsal Shiv Vihar, Uttam Nagar,
Delhi - 110059
8. Sh. Daulat Ram
S/o Sh. Shiv Ram Harak
R/o A64, J.J. Colony,
Hastsal Shiv Vihar, Uttam Nagar,
Delhi - 110059
..........................PLAINTIFFS
VERSUS
Delhi Development Authority
Having its Office at Vikas Sadan, INA Market, New Delhi.
.....................DEFENDANT
Suit filed on - 17/01/2001
Judgment Reserved on - 24/12/2019
Date of decision - 30/01/2020
SUIT FOR PERMANENT INJUNCTION AND MANDATORY
INJUNCTION
Suit No.213/17 Page2/20
3
JUDGMENT: By this judgment, I shall adjudicate a suit for permanent and mandatory injunction filed by the plaintiffs against the defendant. Before adjudicating upon the issues framed in the present suit, it is necessary to state the pleadings in the present suit concisely.
Pleadings of the plaintiffs :
1. The brief background of the present case is that the present case has been filed by eight jhuggie dwellers seeking the decree of permanent injunction restraining the defendant/DDA from evicting them from their jhuggies in Janakpuri, New Delhi and also a decree of mandatory injunction thereby issuing directions to the defendant/DDA to allot a plot measuring 18sq. meters to them.
The present suit was initially partly decreed by the Ld. Predecessor of this court and the defendant/DDA was directed by way of mandatory injunction to allot a plot measuring 18sq. meters to the plaintiffs vide judgment dt.01/03/2005. Against the said judgment, the defendant/DDA preferred an appeal which was dismissed by the Ld. first appellate court vide judgment dt.05/11/2009. Thereafter, the regular second appeal was filed by DDA before the Hon'ble High Court of Delhi against the plaintiffs whereby vide order dt.20/10/2016, the Hon'ble High Court of Delhi had remanded back the matter to this court to decide afresh. The relevant paragraphs of the order dt.20/10/2016 of the Hon'ble High Court of Delhi whereby the present suit was remanded to this court are reproduced herein below : "Para4 The appeal is accordingly disposed of with consent by remanding the matter to the trial court for deciding the suit afresh in accordance with law. Suit will proceed from the stage of the respondents/plaintiffs' evidence. Appellant/defendant no.1/DDA will file the subject Suit No.213/17 Page3/20 4 policy as applicable at the time when the respondents/plaintiffs were evicted from the jhuggies situated on the land of the appellant/DDA and which be done by the appellant/DDA within a period of two weeks of the first date which will be fixed before the trial court.
Para5 - This order is passed without prejudice to the respective rights of the parties as to entitlement or otherwise of the respondents/plaintiffs to alternative plots in terms of the policy of the appellant/DDA."
2. Briefly stated, this is a suit for permanent injunction filed by the plaintiffs against the defendant whereby plaintiffs have sought relief of permanent injunction thereby restraining the defendant/DDA from evicting the plaintiffs and their family members from the jhuggies at Plot No.630, BlockB1, Janakpuri, New Delhi and also a decree of mandatory injunction thereby issuing directions to the defendant/DDA to allot a plot measuring 18sq. meters to them.
It is the case of the plaintiffs that the plaintiffs are jhuggie dwellers who are living in their jhuggies since almost 25 years at the time of institution of the suit, located at Plot No.630, BlockB1, Janakpuri, New Delhi. That the defendant/DDA had proposed to vacate the jhuggies after providing plot measuring 18sq. meters upon the payment of Rs.7,000/ to all the jhuggie dwellers and such proposal was also accepted by the jhuggie dwellers.
It is stated that the defendant issued allotment letters to certain jhuggie dwellers in phases and promised the others to issue their allotment letters according to the date of issuance of the ration card. It is submitted that on 08/01/2001, the officials of the defendants alongwith police officers came at the site and demolished the jhuggies of the plaintiffs. It is stated that due to the action of the defendant, the family of the plaintiffs have become roofless and they are struggling for their survival.
It is further submitted that the plaintiffs have been holding their ration card, identity card and their proof of residence which has also been recorded by Suit No.213/17 Page4/20 5 the defendant/DDA in their record after survey and, therefore, plaintiffs are entitled to the allotment of alternative plot of 18sq. meters and they are willing to make payment of Rs.7,000/ as claimed by the defendant/DDA. It is in these circumstances, that the plaintiffs have filed the present suit seeking permanent and mandatory injunction against the defendant.
Pleadings of the Defendant :
3. The written statement was filed on behalf of defendant/DDA wherein inter alia, it was submitted that the plaintiffs have trespassed in plot No.630, BlockB1, Janakpuri, New Delhi and have raised their jhuggies illegally and unlawfully. It was submitted that guidelines were framed where it was specified that those jhuggie dwellers who have ration card prior to 31/12/1998 and voter identity card issued in the year 1990 would be entitled for allotment of plot measuring 18.6sq. meters and plaintiff no.1 & 8 were not found in occupation of any jhuggie at the site. It was further stated that plaintiff no.2 to 5 were not able to produce the required documents for their claim of alternative allotment. Plaintiff no.6 was issued demand letter for depositing Rs.7,000/. It is further submitted that plaintiff no.7 had been sharing his jhuggie with his father Sh. Sarju Parsad who had already been provided alternative plot of 18.6sq. meters at Hastal and, therefore, plaintiffs are not entitled to any claim.
4. Replication has also been filed on behalf of plaintiff to the written statement of defendant/DDA wherein the averments made in the written statement were denied and those made in the plaint were reiterated and reaffirmed. Further, in the replication it was submitted in respect of plaintiff no.7 that he was not sharing his jhuggie with his father Sh. Suraj Parsad and he had his separate jhuggie at the site and, therefore, he is entitled for alternative allotment by DDA.
Suit No.213/17 Page5/20
6
Issues :
5. From the pleadings of the parties, following issues were framed in the suit vide order dt.23/04/2002 :
(a) Whether suit is bad for want of notice U/S 53B of Delhi Development Act, 1957? OPD
(b) Whether plaintiff is entitled for the relief of mandatory injunction as prayed for? OPP
(c) Whether plaintiff is entitled for the relief of permanent injunction as prayed for? OPP
(d) Relief.
Evidence :
6. In order to prove their case, plaintiffs led the following evidence :
(a) Plaintiff no.1 was examined as PW1 who led his evidence by way of affidavit which is Ext. PW1/P1 wherein he reiterated the averments made in the plaint. PW1 also relied upon certain documents which are as under : Identification Description Mark Ex. PW1/1 Photocopy of Special Power of Attorney dt.04/03/2003.
Ex. PW1/2 Photocopy of ration card of plaintiff no.1 issued on 26/05/1993.
Ex. PW1/3 Photocopy of ration card of plaintiff no.2 issued on 08/04/1997.
Ex. PW1/4 Photocopy of ration card of plaintiff no.3 issued on 21/04/1997.
Ex. PW1/5 Photocopy of ration card of plaintiff no.4 issued on
Suit No.213/17 Page6/20
7
05/02/1999.
Ex. PW1/6 Photocopy of ration card of plaintiff no.5 issued on
21/07/1997.
Ex. PW1/7 Photocopy of ration card of plaintiff no.8.
Ex. PW1/8 Photocopy of ration card of plaintiff no.7 issued on
21/07/1997.
Ex. PW1/9 Photocopy of identity card of plaintiff no.1 issued on
23/03/1996.
Ex. PW1/10 Photocopy of identity card of plaintiff no.3 issued on
23/03/1996.
Ex. PW1/11 Photocopy of driving license of plaintiff no.6.
Ex. PW1/12 Photocopy of identity card of plaintiff no.8 issued on
18/03/1990.
Ex. PW1/13 Photocopy of token number.
Ex. PW1/14 and Photocopies of police complaints.
PW1/15
Ex. PW1/16 The copy of SPA dt.09/02/2018.
Ex. PW1/17 Copy of death certificate of plaintiff no.2.
Ex. PW1/18 Photocopy of election identity card of Sh. Vinod Kumar.
Ex. PW1/19 Evidence affidavit of Sh. Shanta Prasad dt.05/03/2003.
Ex. PW1/20 Original Demand Draft No.001967 dt.18/04/2011 of
Rs.7,000/.
Evidence affidavit of PW1 was filed initially on 05/03/2003 and after the matter was remanded back from the Hon'ble High Court of Delhi, additional evidence affidavit of PW1 was filed on 09/02/2018.
It was stated by PW1 in his earlier evidence affidavit filed on Suit No.213/17 Page7/20 8 05/03/2003 that he is the attorney holder of all the other plaintiffs and rest of the averments were a reiteration of the plaint. PW1 was crossexamined by the counsel for defendant and during his crossexamination, PW1 stated that he has encroached upon the plot and he did not take any permission from any department before occupying the same. He further stated that no notice was served upon the defendant/DDA before filing of the case. He stated that he has ration card from 1998 and voter identity card from 1996. He further stated that there is no jhuggie at the time when he was deposing before the court and that the land is lying vacant and has been fenced by DDA.
An additional evidence affidavit was filed by plaintiff/PW1 on 09/02/2018 in which it was stated that plaintiff no.2 had expired and an SPA dt.09/02/2018 was executed in favour of LRs of plaintiff no.2 Sh. Vinod Kumar. It was submitted that PW1 and all the other plaintiffs are having the documentary evidence showing their existence at their respective jhuggies prior to demolition of the jhuggie as per the criteria mentioned by DDA in its policy. It was submitted that plaintiff no.6 was always ready to deposit the amount of Rs.7,000/ for allotment of alternate plot, but the defendant/DDA never received the said amount.
PW1 was also crossexamined by the counsel for defendant after the matter was remanded back by the Hon'ble High Court of Delhi. In his cross examination, PW1 stated that all the plaintiffs were using their respective jhuggies for residential purposes. It was further submitted by PW1 that he was not available at the site when the survey was carried out as he was at his work site and those who were present when the survey was being conducted, their name was being recorded. It was further stated that all the other plaintiffs were also not present at the site and were present at their workplace and, hence, their names could not be recorded in the survey which was conducted somewhere in November, 1999 at evening time. PW1 further stated that he did not file any Suit No.213/17 Page8/20 9 representation to DDA/MCD/GNCT to induct his name in the survey list. PW1 further stated that he did file any objection after the preparation of list of eligible persons by DDA.
(b) Thereafter, Sh. Ganga Ram was examined as PW2 by the plaintiffs and he led his evidence by way of affidavit which is Ex. PW2/A wherein he stated that he is one of the jhuggie dwellers at the plot bearing No.630, BlockB 1, Janakpuri, New Delhi and that he received an alternative plot in view of the DDA's resettlement policy dt.03/02/2004. He further submitted that all the plaintiffs are those jhuggie dwellers who were living at the plot bearing No.630 in their respective jhuggies for around 25 years prior to the demolition of their jhuggies.
PW2 was also crossexamined by the counsel for defendant and in his crossexamination, PW2 stated that DDA had issued him a demand letter and on the basis of the said demand letter he was given alternative plot. PW2 stood the test of crossexamination and there was no contradiction in his testimony.
(c) Thereafter, Sh. Hari Ram was examined as PW3 by the plaintiffs and he led his evidence by way of affidavit which is Ex. PW3/A. PW3 also deposed on the same lines as of PW2 and he also received the alternate plot in view of the DDA's resettlement policy dt.03/02/2004. PW3 was also crossexamined by the counsel for defendant. PW3 also stood the test of crossexamination and there was no contradiction in his testimony.
Plaintiff's evidence was closed on the basis of statement of the counsel for plaintiffs vide order dt.15/10/2018.
7. Defendant got examined one witness i.e. Sh. Ompal Sharma, Patwari IM West Zone, DDA as DW1 before the matter was remanded back by the Hon'ble High Court of Delhi. DW1 stated that the plot bearing No.630, Block Suit No.213/17 Page9/20 10 B1, Janakpuri, New Delhi falls in Khasra No.1 etc./103min Village Nangli Jalim which was acquired vide award No.1814 of 1965 and by notification F8 (49)/63 L&H dt.30/11/1965, the land was placed at the disposal of defendant/DDA. He further stated that jhuggie cluster on the said plot was removed and plot is lying vacant and there is wire fencing at the plot.
DW1 was also crossexamined on behalf of plaintiffs and during his crossexamination he has stated that the people residing at the plot in question have been allotted alternative plots, but he do not know where the alternative plots have been allotted and he further cannot tell as to why the allotment was not made to the plaintiffs. He further stated that he cannot even tell the criteria of allotment of plot.
After the present suit was remanded back by the Hon'ble High Court of Delhi, the defendant filed the evidence affidavit of one witness i.e. Sh. R.K. Nagpal and examined him as DW2 who tendered his evidence by way of affidavit Ex. DW2/A. DW2 placed on record the policy bearing No.F2(1)2001/LMC.Pt.A/86 dt.03/02/2004 (hereinafter referred to as "policy") which was exhibited as Ex. DW2/1. The rest of the averments of the evidence affidavit of DW2 were merely reiteration of the written statement. It was further stated by DW2 that as the plaintiffs did not fulfill the eligibility criteria prescribed in the policy for allotment of alternate plot, therefore, none of the plaintiffs was entitled for the allotment of plot from DDA.
DW2 was also crossexamined by the counsel for plaintiff. During his crossexamination, DW2 stated that policy Ex. DW2/1 is for the purpose of restoration of jhuggie dwellers who have trespassed on the land of DDA. He denied the suggestion of the counsel for plaintiffs that the DDA has taken a contrary stand in the written statement as compared to the policy Ex. DW2/1. He further stated that he is not aware as to whether any survey was conducted by DDA prior to demolition or not. He further stated that he is not aware as to how Suit No.213/17 Page10/20 11 many of jhuggie dwellers have been given alternate plots as per the policy. Thereafter, defendant's evidence was closed on the basis of the statement of counsel for defendant vide order dt.29/05/2019.
Decision with reasons :
8. The arguments were heard on behalf of both the parties at length and record has been carefully perused. Now, I shall give my issuewise findings which are as under :
9. Issue No.(a)
(a) Whether suit is bad for want of notice U/S 53B of DD Act? OPD The onus to prove this issue was upon the defendant. No specific evidence was led by the defendant on this issue. It is relevant to refer the observations of the Hon'ble High Court of Delhi in the case of "Col. A.B. Singh (through LRs) V/s Shri Chunni Lal Sawhney and Others (RFA No.96/2002, decided on 05/10/2011)," which are reproduced herein after : "In any case, this issue is no longer res integra in as much as, it has been held by division bench judgment of this court in "Yashoda Kumari V/s MCD and Others (AIR 2004 Delhi 225),"
that once there is a contest to the suit, the suit cannot be held to be barred for not giving of notice U/S 53B of DD Act in as much as the basic object of Section53B, like Section80 CPC is to prevent the matters from coming to court and once the matter reach the court and are contested the suit should not be dismissed on such technical grounds."
The present case has been contested on merits and has gone through the rigours of trial, appeal and also second appeal thus, as per the observation of Suit No.213/17 Page11/20 12 Hon'ble High Court of Delhi as aforementioned the nonservice of notice U/S 53B of DD Act cannot be held to be fatal to justify the dismissal of the suit on the ground of maintainability. In the considered opinion of this court, the defendant/DDA has contested the case at length and the dismissal of the suit which was filed in the year 2001 on this technical noncompliance of Section 53B of DD Act would not be justified.
Hence, issue no.(a) is decided against the defendant and in favour of the plaintiffs.
10. Issue No.(c)
(c) Whether plaintiff is entitled for the relief of permanent injunction as prayed for? OPP The onus to prove this issue was upon the plaintiffs. In the written statement it has been admitted by the defendant that the defendant/DDA has already demolished the jhuggies of the plaintiffs and the land has been vacated. In fact PW1 has also admitted that the land where the jhuggies of the plaintiffs stood has already been vacated by the DDA. Therefore, the relief of permanent injunction has become infructuous and, hence, no findings or observations in respect of this issue are required to be given.
11. Issue No.(b)
(b) Whether plaintiff is entitled for the relief of mandatory injunction as prayed for? OPP The onus to prove this issue was upon the plaintiffs. It is the case of the plaintiffs that plaintiffs being occupants and the jhuggie dwellers and as their jhuggies were demolished by DDA, in terms of the policy of the DDA they are entitled for allotment of alternate jhuggies by DDA. It is submitted by the plaintiffs that lots of other residents of near by jhuggies Suit No.213/17 Page12/20 13 have been alloted alternate plots by DDA, however, DDA has failed to give any alternate plot to the plaintiffs. After the matter was remanded back by the Hon'ble High Court of Delhi vide order dt.20/10/2016, the defendant/DDA has placed on the record the policy/guidelines dt.03/02/2004 which are applicable for relocation of jhuggie clusters in Delhi. Therefore, the entire controversy in the present case pertains to the issue whether the plaintiffs are eligible for alternate allotment as per the policy guidelines issued by the defendant/DDA dt.03/02/2004. The eligibility conditions as per the aforesaid policy issued by DDA are reproduced herein below as the counsel for the defendant/DDA has argued that plaintiffs are not eligible for allotment of any alternate plot.
"Eligibility Conditions :
1. The JJ dwellers must be a citizen of India.
2. The JJ dwellers can not claim the allotment as a matter of legal right.
3. The name of the JJ dwellers should figure in the survey record conducted by the DDA.
4. The JJ dwellers should possess documentary evidence showing his existence prior to 31/01/1990 or post 1990 but before 31 st December, 1998 till the date of removal.
5. The JJ dwellers will be entitled to one residential plot only even if he is occupying more than one jhuggie.
6. No alternative plot should be given for commercial JJ dwellers.
7. The jhuggie being used for both residential and commercial purposes can be considered allotment of one residential plot only. In case, the ground floor of the jhuggie is being used for commercial purposes and other floors for residential purposes, that will entitle him for one residential plot only, if such commercial and residential unit is occupied by the same Suit No.213/17 Page13/20 14 person.
8. In case of multistoreyed jhuggie occupied by the same person or different persons, the allotment may be considered for the occupant of ground floor only.
9. Allotment should be made in the joint name of the husband and wife occupying a jhuggie.
10. The allotment of plots to the JJ dwellers will be subject to the result of pending decision and out come of the SLP (Civil) No.31663167/2003 (From the judgment and order dt.29/11/2002 in CWP 4441/94 and CWP 2112/02 of the High Court of Delhi) in Supreme Court of India."
The main argument of the counsel for defendant/DDA is that the plaintiffs did not fulfill the eligibility condition No.4 as listed out above and, therefore, they are not entitled to any alternate allotment by the DDA. As per the said contention, the jhuggie dwellers should possess documentary evidence showing his existence prior to 31/01/1990 or post 1990 but before December, 1998 till the date of removal. It has been argued by the counsel for defendant that plaintiffs did not fulfill the eligibility criteria, therefore, they are not entitled for any alternate allotment. In this regard it is essential to appreciate the evidence led by the plaintiffs on record and ascertain as to what all documents have been filed by the plaintiffs in order to show that they are entitled for allotment of alternate plot. For the sake of convenience, the list of documents filed in respect of each of the plaintiffs is listed below : Name of plaintiff Number of documents Date Sh. Shanta Prasad (Plaintiff no.1) Ex. PW1/2 Ration Card. 26/05/1993 Ex. PW1/9 Identity Card. 23/03/1996 Suit No.213/17 Page14/20 15 Sh. Sat Narayan (Plaintiff no.2) Ex. PW1/3 Ration Card. 08/04/1997 Ex. PW1/14 Complaint by 09/08/1997 plaintiff no.2 07/07/1997 Ex. PW1/15 Complaint by plaintiff no.2 Sh. Mohan Lal (Plaintiff no.3) Ex. PW1/4 Ration Card 21/07/1997 Ex. PW1/10 Identity Card 23/03/1996 Sh. Vijay Kumar (Plaintiff no.4) Ex. PW1/5 Ration Card 21/07/1997 and Reissued on 05/02/1999 Sh. Sobh Nath (Plaintiff no.5) Ex. PW1/6 Ration Card 21/07/1997 Sh. Sat Paul (Plaintiff no.6) Ex. PW1/11 Driving License 05/08/1994 Sh. Deshraj (Plaintiff no.7) Ex. PW1/8 Ration Card 21/07/1997 Sh. Daulat Ram (Plaintiff no.8) Ex. PW1/12 Identity Card 18/03/1990 Ex. PW1/13 Metallic Token Prior to 1990 Sh. Vinod Kumar (LR of plaintiff Ex. PW1/16 SPA 09/02/2018 no.2) Ex. PW1/17 Death Certificate of plaintiff no.2 PW1/18 Election Identity Card PW1/20 Original DD 18/04/2011 No.001967 On the basis of the aforesaid documents, counsel for the plaintiffs has argued that the documents proved on record by the plaintiffs show that they were Suit No.213/17 Page15/20 16 in possession of their respective jhuggies at the site since long. Counsel for the plaintiffs has further argued that the plaintiffs are entitled for equal treatment alongwith other similarly placed persons and as the other jhuggie dwellers including PW2 and PW3 have been given alternate allotment, the defendant cannot discriminate the plaintiffs in the present case and, therefore, they are also entitled for alternate allotment. Counsel for the plaintiff has further argued that the defendant being the state/public authority is obligated by law to treat similarly placed persons equally. In this regard, counsel for plaintiffs has also relied upon the observations of the Hon'ble High Court of Delhi in case titled as "Sudama Singh & Others V/s Government of Delhi & Another, {168(2010) Delhi Law Times 218 (DB)}." The relevant observations of the Hon'ble High Court of Delhi in the said judgment are reproduced herein below : "55. We find no difficulty in the context of the present case, and in the light of the jurisprudence developed by our Supreme Court and the High Court in the cases referred to earlier, to require the respondents to engage meaningfully with those who are sought to be evicted. It must be remembered that the MPD 2021 clearly identifies the relocation of slum dwellers as one of the priorities for the government. Spaces have been earmarked for housing of the economically weaker sections. The government will be failing in its statutory and constitutional obligation if it fails to identify spaces equipped infrastructurally with the civic amenities that can ensure a decent living to those being relocated prior to initiating the moves for eviction.
56. The respondents in these cases were unable to place records to show that any systematic survey had been undertaken of the jhuggi clusters where the petitioners and others resided. There appears to be no protocol developed which will indicate the manner in which the surveys should be conducted, the kind of relevant documentation that each resident has to produce to justify entitlement to relocation, including information relating to present means of livelihood, earning,access to education for the children, access to health facilities, access to public transportation etc. Suit No.213/17 Page16/20 17
57. This Court would like to emphasise that the context of the MPD, jhuggi dwellers are not to be treated as secondary citizens. They are entitled to no less an access to basic survival needs as any other citizen. It is the States constitutional and statutory obligation to ensure that if the jhuggi dweller is forcibly evicted and relocated, such jhuggi dweller is not worse off. The relocation has to be a meaningful exercise consistent with the rights to life, livelihood and dignity of such jhuggi dweller.
58. It is not uncommon to find a jhuggi dweller, with the bulldozer at the doorstep, desperately trying to save whatever precious little belongings and documents they have, which could perhaps testify to the fact that the jhuggi dweller resided at that place. These documents are literally a matter of life for a jhuggi dweller, since most relocation schemes require proof of residence before a cutoff date. If these documents are either forcefully snatched away or destroyed (and very often they are) then the jhuggi dweller is unable to establish entitlement to resettlement. Therefore, the exercise of conducting a survey has to be very carefully undertaken and with great deal of responsibility keeping in view the desperate need of the jhuggi dweller for an alternative accommodation. A separate folder must be preserved by the agency or the agencies that are involved in the survey for each jhuggi dweller with all relevant documents of that jhuggi dweller in one place. Ideally if these documents can be digitalized then there will be no need for repeated production of these documents time and again whenever the jhuggi dweller has in fact to be assigned a place at the relocated site.
59. Each member of the family of the jhuggi dweller is invariably engaged in some livelihood from morning to night. It is, therefore, not uncommon that when a survey team arrives at a jhuggi camp, some or the other member may not be found there. By merely stopping with that single visit, and not finding a particular member of that family, it may not be concluded that no such member resides in that jhuggi. Such an exercise, if it has to be meaningful, has to be undertaken either at the time when all the members of the family are likely to be found. Alternatively there should be repeated visits by the survey team over a period of time with proper prior announcement. If jhuggi dwellers are kept at the centre of this exercise and it is understood that the State has to work to ensure protection of their rights, then the procedure adopted will automatically change, consistent with that requirement."
Suit No.213/17 Page17/20
18
It is argued by the counsel for defendant that the plaintiffs are trespassers over the Government land and they are not entitled for any alternate allotment as they do not fulfill the criteria of the policy dt.03/02/2004 Ex. DW 2/1. It is the admitted case even by DDA that other peoples residing in the area were given alternate plots. The testimony of DW2 and DW3 who are other jhuggi dwellers who have been given alternate allotment by the DDA has remained trustworthy and it has been clearly established on record that alternate allotment to other jhuggi dwellers of the same area was given by DDA.
The documents filed by the plaintiffs have sufficiently established that plaintiffs were in occupation of the plots in question and as it is listed in the aforesaid table, the plaintiffs have also qualified the eligibility conditions of the policy Ex. DW2/1. The argument of counsel for defendant that the name of plaintiffs are not reflected in the survey report/list of DDA does not hold any merit as the DDA has failed to place on record any such survey list to substantiate its submissions. Even otherwise, no document has been placed on record by the defendant to show that any survey whatsoever was in fact conducted by DDA. DW2 during his crossexamination stated that he is not aware as to whether any survey was conducted by DDA prior to the demolition of jhuggies or not. DW2 further stated that he is not even aware how many jhuggi dwellers were given alternative plots by DDA. Hence the argument that the names of plaintiffs is not reflected in the survey report/list of defendant/DDA does not hold any water.
Further, the argument of the defendant that plaintiff no.2,3,4 & 5 were not able to produce the required documentary proof is without any merit in view of the documents placed on record in respect of the plaintiff no.2,3,4 & 5 as listed in the table above. The arguments of the defendant in respect of plaintiff no.1 & 8 that they were not found in occupation of jhuggies at the site does not hold any Suit No.213/17 Page18/20 19 merit in view of the above mentioned judgment of the Hon'ble High Court of Delhi relied upon by the plaintiffs and also as the documents filed qua plaintiff no.1 & 8 reflect their occupation of the jhuggies. In respect of plaintiff no.6 it was submitted by the defendant that a demand letter was issued to the plaintiff no.6 and as the plaintiff no.6 has not deposited the amount sought in the demand letter he shall not be entitled to any alternate allotment. The said submission of the defendant has not been substantiated by any evidence whatsoever and even otherwise as it is admitted by DDA that plaintiff no.6 is entitled for alternate allotment and, hence, it is in the interest of justice that he shall be given the same. It was also argued in respect of plaintiff no.7 that he has been sharing his jhuggie with his father Sh. Suraj Prasad who has been provided with an alternate plot of 18.6 sq. meters. However, the defendant/DDA has not placed on record any document whatsoever to substantiate its averment or to show that plaintiff no.7 and his father Sh. Suraj Prasad were residing in same jhuggie. The same could have been done by the defendant/DDA by placing on record the survey list. However, as the defendant/DDA has deliberately chosen to not file the survey record, an adverse inference is drawn against the defendant/DDA as per the provisions of Indian Evidence Act, 1872. As per the policy Ex. DW2/1, 12.5sq. meters of plot has to be allotted for those who can show documentary evidence of existence for post 1990 but before 31/12/1998.
Therefore, in view of the aforesaid observations, it is apparent that plaintiffs have been able to prove their case on the scale of preponderance of probabilities and that defendant/DDA has discriminated between similarly placed jhuggie dwellers. Therefore, the plaintiffs are hereby held entitled for the decree of mandatory injunction and defendant/DDA is hereby directed to allot alternative plots (measuring 12.5sq. meters each) separately to each plaintiff i.e. plaintiff no.1 to 8 in terms of the policy Ex. DW2/1 within one month from today. It is needless to mention that the amount if any, to be payable by the Suit No.213/17 Page19/20 20 plaintiffs shall be determined as per the charges applicable on the date of filing of the present suit.
Accordingly, the issue no.(b) is decided in favour of plaintiffs and against the defendant.
12. Issue no.(d)
(d) Relief - In view of the findings given on issues no.(a) to (c), documents placed on record, pleadings of the parties and evidence led by the parties, the plaintiffs have proved their case on the scale of preponderance of probabilities. Accordingly, the suit of the plaintiffs is hereby decreed and following reliefs are awarded to the plaintiffs :
1. A decree of mandatory injunction in favour of plaintiffs and against the defendant thereby directing the defendant/DDA to allot alternate plots (measuring 12.5sq. Meters each) separately to each plaintiff i.e. plaintiff no.1 to 8 in terms of the policy Ex. DW2/1 within one month from today.
Decree sheet be prepared accordingly. File be consigned to record Digitally signed by room after completing the necessary formalities. BHARAT BHARAT AGGARWAL AGGARWAL Date: 2020.01.31 17:36:52 +0530 (BHARAT AGGARWAL) Civil Judge, Delhi (West)02 Announced in the open court on 30/01/2020.
Suit No.213/17 Page20/20