Delhi District Court
Smt. Bimla Rani vs Delhi Development Authority on 19 September, 2007
IN THE COURT OF S.S.HANDA ADDL. DISTRICT JUDGE
DELHI
RCA No.149/2002
SMT. BIMLA RANI
WD/O LATE SH. ROSHAN LAL KOHLI
R/O 1/29 EAST PUNJABI BAGH.
NEW DELHI ...Appellant
Versus
DELHI DEVELOPMENT AUTHORITY
THROUGH ITS VICE CHAIRMAN/SECRETARY
VIKAS SADAN, INA, NEW DELHI ...Defendant
Date of institution of the appeal : 18.9.2002
Date of arguments : 18.9.2007
Date of Decision : 19.9.2007
Appearances :Shri M.M.Aggarwal, counsel for
appellant.
Shri K.D.Sharma, counsel for
respondent.
JUDGMENT
Smt. Bimla Rani the plaintiff now represented by her legal heirs/LRs instituted the suit on 27.3.1989 for a decree of declaration that "she is entitled to alternative allotment in accordance with the policy of the DDA, particularly resolution no.
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211 dated 11.10.1977." Further, the decree of mandatory injunction was sought against the DDA, "to allot a plot of 350 Sq. yards to the plaintiff at Mayapuri Industrial Area." This suit of the plaintiff was dismissed on merits vide judgment and decree of the Ld. Civil Judge dated 13.8.2002. During the pendency of the suit the plaintiff had expired and her legal heirs/LRs were impleaded representing her. The present appeal was instituted by the LRs on 16.9.2002 to set aside the impugned judgment and decree; with the prayer to decree the suit of the plaintiff.
2. Precisely the case of the plaintiff/appellant is that the husband of Smt. Bimla Rani late Sh. Roshan Lal occupied a plot measuring 380 Sq. yards opposite Idgah in Jhandewalan Estate Delhi w.e.f. 1.1.1962 or that he paid damages till 1968 when he was removed. He was not given alternative plot on the plea that he was not assessed to damages prior to 1.1.1961. Smt. Bimla Rani alleging that she recently came to know that DDA had changed its earlier policy and gave alternative allotment to all the evictees of Motiya Khan
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who were assessed to damages even prior to 1.1.1962. Further that vide resolution dated 11.10.1977. DDA also allotted alternative plots ever to those evictees who were not even assessed to damages but were doing bonafide business at Motiya Khan. Hence, she made the representation on 9.1.1989 to DDA Committee for allotment of alternative plots being covered under the policy of evictees of Motiya Khan area but her application was not accepted. Consequently she instituted the present suit with the relief above mentioned. The respondent DDA took the preliminary objection that the suit of the plaintiff was not maintainable for want of notice u/s 53 B of DD Act. Secondly that suit of the plaintiff as per own admission as filed on 27.3.1999 was barred by limitation. On merits, the respondent denied that late Sh. Roshan Lal was in possession of 380 Sq. yards of land as claimed and that he paid damages as claimed w.e.f. 1.1.1962 up till 1968 and that he was removed by the respondent from any plot of land. The respondent set up the case that M/s Roshan Lal & Sons were in occupation of 133 Sq. yards of land and were assessed to damages
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from 1.4.1969 to 31.3.1974. That resolution no. 211 dated 11.10.1977 for alternative site was passed by the respondent. In that resolution the cases of those evictees were assessed who were in occupation of land in Motiya Khan and were doing the business at the time of clearance operation. That all the evictees of Motiya Khan who were so found legible have already been provided the alternative sites according to their trade and requirements. The case of the plaintiff was not covered under the said resolution whereas in view of the resolution no. 17 dated 21.8.1986 the respondent decided not to reopen the past cases of the evictees of Motiya Khan. Mr. Ashok Kumar son of late Shri Roshan Lal and the plaintiff also made representation for alternative site which was rejected. Now the plaintiff had instituted the suit which was false and frivolous and the plaintiff was not entitled to the relief claimed for.
3. The Ld. Trial Court had framed on 1.3.1990 the following issues:
(1) Whether the action of the deft. is illegal, ultra-vires and without jurisdiction?
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(2) Whether the suit isbad for want of notice u/s 53-B DD Act? OPD (3) Whether the suit is barred by limitation?OPD (4) Whether the plaintiff is entitled for the relief claimed for?
4. After appraisal of the evidence of the witness/plaintiff i.e. PW1, PW2 and evidence of the defendant i.e. DW1; the Ld. Civil Court dismissed the suit of the plaintiff. The suit was held to be not maintainable for want of notice u/s 53 B DD Act. The suit was held to be barred by limitation. The Ld. Civil Court further held that case of the plaintiff was not covered under the resolution no. 211 dated 11.10.1978 that she had not justiciable rights for allotment of alternative plot. Accordingly issue no. 1 to 4 were answered again the plaintiff.
5. In the appeal the judgment and decree had been assailed on the ground that it is not based on due appreciation of law and facts that the findings rendered by the Ld. Civil Judge were not based upon judicial reasoning and proper appreciation of evidence. That as the findings rendered were based on conjuncture and surmises; the impugned judgment and decree
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liable to be set aside and suit of the plaintiff was liable to be decreed.
6. During the course of arguments four material contentions were raised before me. Firstly as to whether the suit of the plaintiff was within limitation. Secondly as to whether the suit of the plaintiff without notice u/s 53 B, DD Act was maintainable. Thirdly as to whether the appellant had justiciable right for the allotment of alternative side and lastly as to whether the case of the appellant was covered under the resolution no. 211 dated 11.10.1977.
7. On the first count Ld. Counsel for the appellant contended that in para 11 of the plaint Smt. Bimla Rani had made the representation on 9.1.1989 and as the representation was not responded by the respondent/DDA; the cause of action to file the present suit arose on and about 9.1.1989. Therefore, the suit having been instituted on 27.3.1989 was within limitation.
8. However, this proposition of the Ld.
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Counsel for the appellant is demolished by own averments of the plaint. The relief is sought on the ground that the predecessor in interest of Smt. Bimla Rani Mr. Roshan Lal was evicteed from the plot of land occupied by him in Motiya Khan in 1968. To her own averments she had come to know of the resolution no. 211 dated 11.10.1977 sometime in the month of July 1986. For the suit for declaration and injunction the limitation period is three years. The policy to allot alternative plots to the evictees of Motiya Khan stood closed vide resolution no. 17 dated 21.8.1986. This policy was held valid in CW No. 45287 in M/s Om Prakash Pramod Kumar verses UOI and others by Hon'ble DB of this court vide order dated 19.2.1987. By writing a letter appellant could not confer cause of action upon herself. Her right to file the suit arose vide order dated 11.10.1977; if any stood closed vide resolution no. 17 dated 21.8.1986 as prior to that she has not filed any representation. The policy pertained to resolution no. 211 dated 11.10.1977. Thus the suit instituted by the plaintiff on 27.3.1989 was clearly barred by limitation.
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9. On the second count in continuation of the above, I find that neither her husband; nor Smt. Bimla Rani had made any representation for alternative plot in pursuance of resolution no. 211 dated 11.10.1977. The self proclaimed letter dated 9.1.1989 does not tantamount to notice. She has not proved on record any notice having been served upon the DDA before filing the suit. The relief sought for in the suit is decreed for declaration that she is entitled to alternative plot of land measuring 350 sq. yards as per policy of the DDA vide resolution no. 211 dated 11.10.1977.
10. In the given case before institution of the suit it was incumbent upon the plaintiff to have served notice u/s 53 B DD Act. The suit without service of notice u/s 53 B of DD Act thus was not maintainable.
11. On the third count, I find that the resolution no. 211 dated 11.10.1977 pertains to policy regarding allotment to Motiya Khan Steel Merchants. It was applicable to the person who were in possession of at the time of clearance of Motia Khan area in 1975-76. The evictees who
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were paying damages to DDA at that time, were given alternative allotment in Naraina, Mayapuri, or Kirti Nagar at reserve rates by the Allotment Committee. The other evictees who were not assessed to damages were entitled for alternative allotment at average auction rates. Mr. Ashok Kumar S/o Mr. Roshan Lal had applied for allotment of alternative site. However he did not qualify the criteria laid being illegible. His case was dismissed even appeal was rejected vide order dated 27.6.1979. The plaintiff has failed to prove any justiciable right for allotment of alternative site under the said resolution. The evidence led by her was mostly irrelevant and untrustworthy.
11. Lastly in continuation of the above I find that the document adduced on record by Smt. Bimla Rani PW1 and by PW2 Mr. Joginder Pal did not establish the case of the plaintiff being covered under the resolution no. 211 dated 11.10.1977. PW1/1 to PW1/27 do not establish that she was qualified to alternative site as in either of the two categories laid in the resolution.
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12. Moreover DDA also passed the resolution no. 17 on 21.8.1986 deciding that all old cases now stand closed. This resolution was upheld by the Hon'ble High Court in CWP No.5452/87 Supra the relief portion of its as follows:
"We are not inclined to interfere with the impugned resolution of the Delhi Development Authority dated 21.8.1985, under article 226 of the constitution of India. It is clear that most of the unauthorised persons occupying the Motiya Khan area who were cleared in the drive of clearance during the emergency have been settled. The cases of some like the petitioners who were not able to satisfy the criteria for allotment of alternative site were scrutinised and rejected earlier. This policy of finding alternative accommodation or the persons who claim to be evicteed from the Motiya Khan area had to be stopped some date after they failed to satisfy the guidelines required for allotment. This is precisely what has been resolved by the Authorities not to re-open the case pertaining to industrial/commercial allotment of 1975-76 clearance operation in Motiya Khan which had already been rejected and not to entertain any such case".
13. In this perspective, I find that the appellant failed to prove that their case was covered under the resolution and they were entitled to the decree of the declaration and decree of mandatory injunction.
14. The finding rendered by the Ld. Civil
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ANNOUNCED IN THE OPEN COURT (S.S.HANDA) on THIS 19th DAY OF SEPTEMBER 2007 ADDL. DISTRICT JUDGE DELHI.