Delhi District Court
Mr. Parishit vs Delhi Urban Shelter Improvement Board on 26 September, 2013
IN THE COURT OF SHRI. ASHISH AGGARWAL, ADDITIONAL SENIOR CIVIL
JUDGECUMJUDGE, SMALL CAUSES COURTCUMGUARDIAN JUDGE,
NORTH WEST DISTRICT, ROHINI COURTS, DELHI.
SUIT NO.227/11.
Unique ID no.02404C0134502011.
Mr. Parishit
S/o Mr. Chabila
R/o 46, CBlock, Pucca, Gali no.7,
Shahbad Dairy, Delhi.
....Plaintiff
Versus
Delhi Urban Shelter Improvement Board,
Govt. of N. C. T. of Delhi,
Through its Chief Executive Officer,
(Earlier known as Slum & JJ Department
of Municipal Corporation of Delhi)
Office at Punarwas Bhawan, Vikas Kutir,
I. P. Estate, New Delhi110002.
....Defendant
Date of institution : 19.05.2011
Date on which reserved for judgment :
Date of decision : 26.09.2013
Suit for Mandatory Injunction
Judgment
1.This judgment shall decide the suit filed by the plaintiff. Version of plaintiff
2. The plaintiff has stated in the plaint that in the year 1990 the defendant floated a policy for INSITU upgradation of poor slum 1/19 Parishit Vs. D. U. S. I. B. Suit no.227/11 dwellers residing in Shahbad Daulatpur, Delhi110042. Under the scheme, the slum dwellers were required to be rehabilitated at the same place by allotting to them 12.5 square metres' plots. The slum dwellers were required to deposit Rs.1680/ with the defendant.
3. In the year 200001, the plaintiff was residing in a hutment at Shahbad Daulatpur, Delhi. Under the INSITU scheme, his hutment was demolished. Demolition slip was issued to him.
4. It is further stated by the plaintiff that he has not been allotted alternate plot. Plaintiff submits that he is ready and willing to deposit Rs.1680/ with the defendant under the scheme.
5. The plaintiff has further stated that on 06.10.06, a draw was carried out and alternate plots were allotted to 176 similarly placed persons. The plaintiff's name also appeared in the draw list but he was not allotted any plot. It is further urged by the plaintiff that he has no place to stay.
6. On the basis of the aforesaid averments, the plaintiff has filed the present suit praying for mandatory injunction directing the defendant to allot a plot to him under the INSITU upgradation scheme and to hand over possession thereof.
Version of the defendant
7. Written statement was filed by defendant. In the written statement, defendant stated that the suit has not been correctly valued for the purpose of court fees and jurisdiction. The defendant also stated that it is a nodal agency to carry out upgradation of jhuggi dwellers. The defendant has stated that on 06.10.2006, a draw was carried out by the defendant. The defendant denied that the name of the plaintiff figured in the list of persons declared successful in the draw. The 2/19 Parishit Vs. D. U. S. I. B. Suit no.227/11 defendant further stated that 368 dwellers were found eligible and only 176 plots were available for allotment which necessitated the draw. The defendant has further stated that the competent authority has decided that no further alternate plots would be allotted. It is further stated that clarifications have been sought from the Delhi Government. The defendant has stated that the Delhi Government has modified policy guidelines and has provided for allotment of flats instead of plots.
Issues
8. After completion of pleadings, issues were framed by Ld. Predecessor of this Court vide order dated 04.11.2011 as follows:
1. Whether the suit has been under valued for the purpose of court fees and jurisdiction? OPD.
2. Whether the plaintiff is entitled to a decree of mandatory injunction as sought in the plaint? OPP.
3. Relief.
Plaintiff's Evidence
9. The plaintiff led evidence in support of his case. He examined himself as PW1. He filed and tendered his affidavit Ex.PW1/A in evidence. In his affidavit, he reiterated the averments made in the plaint. He identified and relied upon the following documents :
a. Demolition slip as Ex.PW1/1;
b. Draw of plots dated 06.10.2006 as Ex.PW1/2;
c. Letter dated 18.04.2011 as Ex.PW1/3;
d. Copy of voter Icard as Ex.PW1/4;
3/19 Parishit Vs. D. U. S. I. B. Suit no.227/11 e. Reply received from the officials of defendant as Ex.PW1/5.
PW1 was crossexamined and discharged.
10.The plaintiff then examined Mr. Hem Prakash as PW2. He tendered his affidavit Ex.PW2/A in evidence. In his affidavit, he stated that in the year 200102, the plaintiff was occupying a jhuggi and his jhuggi was demolished under the INSITU upgradation scheme. He identified the demolition slip as Ex.PW1/1. He was crossexamined and was discharged.
11.The plaintiff then examined Mr. K. L. Maurya, AE as PW3. PW3 stated that there are some plots which are vacant. He was crossexamined and was discharged.
12.The plaintiff then examined Mr. Raj Singh, Supervisor as PW4. He produced and relied upon the record concerning voter Icard of the plaintiff as Ex.PW4/1. He also admitted the correctness of document PW1/4. He was crossexamined and was then discharged.
13.The plaintiff then examined Mr. Naresh Kumar, LDC from Rehabilitation Branch, DUSIB as PW5. He produced and relied upon original draw list dated 06.10.2006 in which name of the plaintiff was mentioned in the survey list as Ex.PW5/1. He was crossexamined and was discharged.
14.The plaintiff then examined Mr. Charan Singh as PW6. He tendered his affidavit as Ex.PW6/A in evidence. In his affidavit, he stated that in the year 200001, the plaintiff was occupying a jhuggi and his jhuggi was demolished under the INSITU upgradation scheme and thereafter demolition slip Ex.PW1/1 against his jhuggi was issued to 4/19 Parishit Vs. D. U. S. I. B. Suit no.227/11 him. He was crossexamined and was discharged. Thereafter, plaintiff's evidence was closed.
Defence evidence
15.The defendant adduced evidence in support of its case. Defendant examined Mr. R. K. Meena as DW1 and he tendered his affidavit Ex.DW1/A in evidence. In his affidavit, he reiterated the contents of the written statement. In his affidavit, he stated that the suit has not been properly valued. He stated that on 06.10.2006 a draw was conducted by defendant and that no plot has been allotted to the plaintiff. The witness was crossexamined and discharged. Thereafter, evidence on behalf of defendant was closed.
16.Final arguments have been heard. My issuewise findings are as under:
Issue No.1 "Whether the suit has been under valued for the purpose of court fees and jurisdiction? OPD."
17.The onus to prove this issue was upon the defendant. According to the defendant, the suit has not been properly valued for the purpose of court fees and jurisdiction. It is stated in the plaint that the suit is required to be valued as per the market value of the suit property as the suit is essentially for the relief of declaration.
18.In the plaint, the plaintiff has prayed for direction to the defendant to allot a plot to the plaintiff. According to the plaintiff, this is his right under the INSITU upgradation scheme.
5/19 Parishit Vs. D. U. S. I. B. Suit no.227/11
19.The suit is for mandatory injunction. It has been valued at Rs.130/ and court fees of Rs.13/ has been affixed.
20.It is settled law that valuation of suits is determined as per the prayers actually made in the plaint and not as per the prayers that ought to have been made. The question of framing of suit is not to be merged into the question of its valuation. In other words, in deciding whether the suit has been correctly valued, the Court need not embark on an enquiry as to whether the suit is correctly framed and whether the plaintiff is intending to seek, or is indirectly seeking, the relief of declaration. Its value is to be ascertained as it is framed. The Court cannot of its own treat the suit as one for declaration and injunction when the only relief sought is of injunction.
This principle of law was laid down in the case of Vishnu Pratap Sugar Works (P.) Ltd. v. Chief Inspector of Stamps, U. P., AIR 1968 SC 102, wherein it was observed as follows:
"It is true that for purposes of the CourtFees Act, it is the substance and not the form which has to be considered while deciding which particular provision of the Act applies. It cannot, however, be gainsaid that the actual relief prayed for in the plaint was an injunction restraining the State and its authorities to realize from the appellantcompany the aforesaid cess and the purchase tax. It is clear from the plaint when read as a whole that though the appellantcompany alleged that the Acts were void and therefore non est for the reasons set out therein, it did not seek any declaration that they were void. The plaint proceeds on the footing that the said Acts were void and that, therefore, the State of U. P. or its authorities had no power to realise the said tax and the said cess. It may be that, while deciding whether to grant, the injunction or not, the court might have to consider the question as to the validity 6/19 Parishit Vs. D. U. S. I. B. Suit no.227/11 or otherwise of the said Act. But that must happen in almost every case where an injunction is prayed for. If for the mere reason, that the court might have to go into such a question, a prayer for injunction were to be treated as one for a declaratory decree of which the consequential relief is injunction, all suits where injunction is prayed for would have to be treated as falling under Cl. (a) of subsection (iv) of S. 7 and in that view Cl. (b) of subsection (ivB) of S. 7 would be superfluous."
In the case of N.A. Siddiqui v. State AIR 1973 AP 13 it was held as under:
"When it is disclosed in the plaint that the relief is not one for declaration but for injunction only, and the plaintiff has been given the liberty to value the relief and when he sought to bring the case within the purview of clause (c) of Section 26 of the CourtFees Act, it is not for the Court, at this stage, to go into the question whether the injunction relief could be considered as a consequential relief, the main relief being one for declaration, and as the Supreme Court has observed in the decision referred to heretofore that invariably, in every case where injunction relief is sought for, it may be on the basis that some act or action or activity on the part of the authorities concerned is not warranted by law. But, in so far as any declaration is not sought for in that direction and when the relief was confined exclusively to injunction, as in the case here before me, it is not open for the Court to read something into the section which is not there."
In the case of Chief Inspector of Stamps v. Laxmi Narain AIR 1970 All 488, it was noted as under:
"Likewise, if only a substantive relief is prayed for, it is not open to a Court to add or read a declaratory relief also into it and treat it as a declaratory relief with a consequential relief."
21.In light of the aforesaid decisions, it is concluded that the suit is to be treated as a suit for injunction alone. The prayer for declaration 7/19 Parishit Vs. D. U. S. I. B. Suit no.227/11 not having been made in the plaint is not determinative of the valuation of the suit. As such, the suit is properly valued.
22.The relief that the plaintiff is seeking is of injunction. Such a suit is required to be valued as per Section 7 (iv) (d) of the Court Fees Act. The said provision states that such suits are to be valued as per the choice of the plaintiff. The Hon'ble High Court of Delhi has, in the case of Sheila Devi Vs. Shri Kishan Lal ILR (1974) II Delhi 491, held that the said choice/discretion of the plaintiff is absolute and unfettered. It has been observed as follows:
"A plain reading of paragraph (iv) of Section 7 shows that it requires the plaintiff in any of the suits mentioned in the various clauses thereof to state the amount at which "he values the relief sought", and the amount of courtfee payable to be computed according to the said amount at which "the relief sought is valued" in the plaint. It is implicit in it, and it is also not disputed, that the paragraph requires the plaintiff himself to value the relief he seeks. The only question for consideration is whether the plaintiff has the right to place any valuation that he likes. The paragraph does not by itself impose any restriction or condition as regards the valuation by the plaintiff. When the statutory provision itself has not imposed any such restriction or condition, it would not be proper, in our opinion, for a Court to introduce such a restriction or condition into the section. The plain language of the provision gives an unrestricted choice to the plaintiff to value the relief. It would not, therefore, be proper for a Court to say that the relief was undervalued and to correct the said valuation invoking the general power mentioned in Order Vii Rule ll(b) or the inherent power saved by Section 151 of the Code of Civil Procedure. The provision in paragraph (iv) of Section 7 of the Courtfees Act which gives a free hand to the plaintiff to place any valuation that he likes and does not place/any restriction or condition has, in our opinion, so far as the suits mentioned in that paragraph are concerned, the effect of taking away the general power of the Court under Order Vii Rule 11(b) of the Code of Civil Procedure and the inherent power to 8/19 Parishit Vs. D. U. S. I. B. Suit no.227/11 correct an undervaluation. The general power and the inherent power stand modified by the special statutory provision in Section 7(iv) of the Courtfees Act. In other words, in, our opinion, paragraph (iv) of Section 7 of the Courtfees Act gives a right to the plaintiff to place any valuation that he likes on the relief he seeks, and the Court has no power to interfere with the plaintiff's valuation. This view is quite in conformity with the nature of the suits mentioned in clauses (a) to (f) of paragraph (iv) of Section 7. All the said suits are such that it is not possible for the plaintiff to specify the precise value of the relief he seeks in each of the said suits. A perusal of the various clauses (a) to (f) shows the same. That was why the legislature obviously thought it fit to leave to the plaintiff to place any valuation the likes on the relief he seeks in such suits. It was sought to be argued that the aforesaid view would permit the plaintiff to place any arbitrary or fanciful value on the relief he seeks."
In the case of Commissioner Aviation and Travel Company and Ors. Vs. Vimla Panna Lal (1988) 3 SCC 423, the Hon'ble Supreme Court examined the discretion of the plaintiff to value his suit as per his wishes. It was observed as under:
"So far as suits coming under Section 7(iv) of the Court Fees Act are concerned, the legislature has left the question of valuation of the relief sought in the plaint or memorandum of appeal to the plaintiff. The reason is obvious. The suits which are mentioned under Section 7(iv) are of such nature that it is difficult to lay down any standard of valuation. Indeed, the legislature has not laid down any standard of valuation in the Court Fees Act. Under Section 9 of the Suits Valuation Act, the High Court may, with the previous sanction of the State Government, frame rules for the valuation of suits referred to in Section 7(iv) of the Court Fees Act. Although the Punjab High Court has framed rules under Section 9 of the Suits Valuation Act which are applicable to the Union Territory of Delhi, such rules do not lay down any standard of valuation with regard to suits coming under Section 7(iv) of the Court Fees Act."
9/19 Parishit Vs. D. U. S. I. B. Suit no.227/11 Hence, the value of the suit accorded by the plaintiff cannot be called into question.
23.For the purpose of valuation of the suit, it is only the averments of the plaint that have to be considered and the said averments are deemed to be true and correct. The defence of the defendant cannot be looked into. This proposition was laid down in the case of Sathappa Chettiar v. Ramanathan Chettiar, AIR 1958 SC 245 wherein it was observed as follows:
"The question of court fees must be considered in the light of the allegations made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on the merits."
Similar observations were made in the case of Neelavanthi Vs. N. Natarajan AIR 1980 SC 691.
24.Hence, for ascertaining whether the suit has been correctly valued, it is only the averments made in the plaint that have to be seen. The plaintiff has averred that the plot should have been allotted but this has not been done. The defendant, on the other hand, has not denied the eligibility of the plaintiff. The only defence of the defendant is that there has been shortage of plots and therefore a draw had been carried out in which the plaintiff was not successful. The plaint does not reflect that the right of the plaintiff has been denied by the defendant. Since the plaint does not reflect any dispute of title or denial of rights of the plaintiff, the plaintiff need not seek a declaration of existence of his rights and a suit for mandatory injunction alone is maintainable and the suit is to be valued 10/19 Parishit Vs. D. U. S. I. B. Suit no.227/11 accordingly.
25.Further, in the present case, the plaintiff has sought direction to the defendant to allot and to hand over possession of an alternative plot. The plot which will be eventually handed over to the plaintiff is not known to the plaintiff. Unless the identity of the property is known, the plaintiff cannot value the said property and accordingly, at this stage, the plaintiff is unable to value the suit decisively. Since an injunction that the plaintiff is claiming is incapable of valuation, the valuation stated by the plaintiff may be accepted. In this regard, the Hon'ble High Court of Delhi has held in the case of Sheila Devi Vs. Shri Kishan Lal ILR (1974) II Delhi 491 that:
"When the nature of the suit is such that no precise value can be placed on the relief sought, and for that reason there cannot be any definite standard by which it can be said that the relief has been undervalued or not, the question of the valuation being arbitrary or fanciful does not arise. To say in such a, case that the valuation placed by the plaintiff is arbitrary or fanciful and seek to interfere with the same would amount to a rewriting of the statutory provision in paragraph (iv) of Section 7 of the Courtfees Act which a Court cannot do."
26.The plaintiff is supporting his right from a scheme framed by the Government. It is the statutory duty of the defendant to give effect to the terms of the scheme. For seeking performance of a statutory duty by a statutory body, the plaintiff can merely pray for mandatory injunction and need not seek recovery of possession or declaration. This is not a title suit against a trespasser for his eviction from the property. It is only in such suits that the suit is to be valued as per the market value of the property. In the present suit, 11/19 Parishit Vs. D. U. S. I. B. Suit no.227/11 declaration of title has not been, and need not be, prayed for.
27.In view of the aforesaid reasons, it is concluded that the suit is not under valued for the purpose of court fees and jurisdiction. The issue is decided in favour of the plaintiff and against the defendant. Issue no.2 "Whether the plaintiff is entitled to a decree of mandatory injunction as sought in the plaint? OPP."
28.The onus to prove this issue was upon the plaintiff. The case of the plaintiff is that he was a slum dweller. His hutment was demolished under a scheme which entitled him to allotment of alternate plot. Yet, he has not been allotted the said plot.
29.The plaintiff has supported his version by his own testimony, and that of PW2 Hem Prakash, PW3 K. L. Maurya, PW4 Raj Singh, PW5 Naresh Kumar and PW6 Charan Singh. That the plaintiff is a slum dweller was proved by the testimony of PW1 (plaintiff himself), PW2 Hem Prakash, PW4 Raj Singh, PW5 Naresh Kumar and PW6 Charan Singh. All the said witnesses have deposed that the plaintiff was living in a hutment/jhuggi and that the same was demolished under the INSITU upgradation scheme. Nothing could be brought out in the crossexamination of the witnesses that could cast a doubt on the correctness of their testimony.
30.From the testimony of the aforesaid witnesses and documents relied upon by them which are also admitted by defence witness Mr. R. K. Meena, it can be safely inferred that the plaintiff was a slum dweller, that the hutment of plaintiff was demolished by the officials of defendant, that this demolition was carried out under the INSITU 12/19 Parishit Vs. D. U. S. I. B. Suit no.227/11 upgradation scheme.
31.DW1 Mr. R. K. Meena is the solitary witness of the defendant. He has admitted in his testimony that the plaintiff is entitled to allotment of alternate plot, that he fulfills the eligibility requirements, and that there is no clause under the scheme which could restrict the benefit of allotment only to those who are successful in the draw. The following statements uttered by DW1 Mr. R. K. Meena are relevant:
"It is correct that some plots are vacant in INSITU scheme Shahbad Daulatpur."
"It is correct that plaintiff is entitled for allotment as prayed by plaintiff in his plaint, if all the formalities are fulfilled by the plaintiff. It is wrong to suggest that I am deposing falsely."
"Court question: Was the plaintiff found eligible for being provided an alternate plot?
Ans. Yes."
"Court question: Can you identify the clause in INSITU upgradation rehabilitation scheme which empowers DUSIB to hold draw of lots and to provide alternate plots to only those who are successful in the draw, while removing the jhuggies of the remaining persons too?
Ans. No."
"Court question: Is the plaintiff similarly placed as the other persons who have been allotted alternate plots?
Ans. Yes."
32.Under Section 10 of the Delhi Urban Shelter Improvement Board Act, 2010, upon removal of the hutment, its occupant is to be resettled. In accordance with the provision, the defendant ought to have provided an alternate plot to the plaintiff after demolition 13/19 Parishit Vs. D. U. S. I. B. Suit no.227/11 of his jhuggi. Admittedly, the jhuggi of the plaintiff was demolished not simply to clear out encroachment but under the INSITU upgradation scheme and for the specific purpose of allotment of an alternate plot. This representation of the defendant estops the defendant and it is not open to the defendant to abort its exercise of allotment midway. In this behalf, reference may be made the decision of Hon'ble Supreme Court in the case of Olga Tellis & Ors.
vs Bombay Municipal Corporation & ors. 1985 SCR Supl. (2) 51. In that case the Hon'ble Supreme Court emphasized that although the Government is at liberty to remove encroachment, the procedure of the said removal must be fair and must be uniformly applied. The Hon'ble Supreme Court further held that the Government must endeavour to resettle the said persons in alternate sites so that their constitutional rights can be safeguarded. It was held that the Government is bound by its promise of resettling the displaced persons. It was held as under:
"Just as a mala fide act has no existence in the eye of law, even so, unreasonableness vitiates law and procedure alike. It is therefore essential that the procedure prescribed by law for depriving a person of his fundamental right, in this case the right to life, must confirm to the norms of justice and fairplay. Procedure, which is unjust or unfair in the circumstances of a case, attracts the vice of unreasonableness, thereby vitiating the law which prescribes that procedure and consequently, the action taken under it. Any action taken by a public authority which is invested with statutory powers has, therefore, to be tested by the application of two standards: The action must be within the scope of the authority conferred by law and secondly, it must be reasonable. If any action, within the scope of the authority conferred by law, is found to be unreasonable it must mean that the procedure established by law 14/19 Parishit Vs. D. U. S. I. B. Suit no.227/11 under which that action is taken is itself unreasonable. The substance of the law cannot be divorced from the procedure which it prescribe for, how reasonable the law is, depends upon how fair is the procedure prescribed by it, Sir Raymond Evershad says that, from the point of view of the ordinary citizen, it is the procedure that will most strongly weigh with him. He will tend to form his judgment of the excellence or otherwise of the legal system from his personal knowledge and experience in seeing the legal machine at work", [`The influence of Remedies on Rights' (Current Legal Problems 1953, Volume 6.)]. Therefore, He that takes the procedural sword shall perish with the sword. "[Per Frankfurter J. in Viteralli v. Seton 3 L.Ed. (2nd Series) 1012] XXX XXX To summarise, we hold that no person has the right to encroach, by erecting a structure or otherwise, on footpaths, pavements or any other place reserved or ear marked for a public purpose like, for example, a garden or a playground; that the provision contained in section 314 of the Bombay Municipal Corporation Act is not unreasonable in the circumstances of the case; and that, the Kamraj Nagar Basti is situated on an accessory road leading to the Western Express Highway. We have referred to the assurances given by the State Government in its pleadings here which, we repeat, must be made good. Stated briefly, pavement dwellers who were censused or who happened to be censused in 1976 should be given, though not as a condition precedent to their removal, alternate pitches at Malavani or at such other convenient place as the Government considers reasonable but not farther away in terms of distance; slum dwellers who were given identity cards and whose dwellings were numbered in the 1976 census must be given alternate sites for their resettlement; slums which have been in existence for a long time, say for twenty years or more, and which have been improved and developed will not be removed unless the land on which they stand or the appurtenant land, is required for a public purposes, in which case, alternate sites or accommodation will be provided to them."
33.In the present case too, demolition was carried out under a scheme which provided for resettlement by allotment of alternate 15/19 Parishit Vs. D. U. S. I. B. Suit no.227/11 plots. Since the demolition was carried out under the provisions of the said scheme, the persons affected by the demolition cannot be deprived of the benefits of resettlement under the scheme. If there was shortage of plots, the defendant ought to have demolished hutments of only as many persons as could be allotted alternate sites. Having demolished indiscriminately, the Government cannot adopt a pick and choose policy at the time of parting with corresponding benefits. It cannot demolish a number of hutments and then provide alternate plots to only a few of them. It is not the case of the defendant that it is providing alternate sites in a phased manner. The defendant must be fair in its approach. In the case of Mahabir Auto Stores v. Indian Oil Corporation AIR 1990 SC 1031, the Hon'ble Supreme Court has emphasized that the actions of public bodies, even if in the nature of a promise or contract, are amenable to judicial scrutiny. It was noted thus:
"Even though the rights of the citizens are in the nature of contractual rights, the manner, the method and motive of a decision of entering or not entering into a contract are subject to judicial review on the touchstone of relevance and reasonableness, fair play, natural justice, equality and nondiscrimination."
In the case of Shyam Gas Company v. State of U.P. AIR 1991 All 129, the Hon'ble Allahabad High Court held that instrumentalities of state must act fairly. It was observed as under:
"The State must act fairly and reasonably does not only flow from Art. 14 of the Constitution. A State is always expected to act fairly to its subjects for which no law is necessary. Art. 14 merely enshrines this principle."
16/19 Parishit Vs. D. U. S. I. B. Suit no.227/11 Since the defendant has deprived the plaintiff from his hutment, it cannot later renege from its promise and withhold the benefits of the scheme.
34.DW1 has admitted that the scheme does not provide for draw of lots. Hence, it is not open for the defendant to restrict the benefit of this scheme to only those who were successful in the draw.
35.DW1 has admitted that the case of the plaintiff is on the same footing as that of other persons who have been allotted plots. Since they are at par, they must be treated equally. The scheme has to be implemented with regard to principles of equality as enshrined in Article 14 of Constitution of India. The criteria of draw of lots is not reasonable. The draw of lots, if any, ought to have been carried out prior to demolition of hutments and the defendant should have demolished the hutments of only those who are successful in the draw. This has not been done. The defendant has demolished the hutments of the plaintiff in addition to those who have been allotted plots. The defendant cannot hold draw of lots after carrying out such demolition to restrict the beneficiaries of the scheme when the scheme does not provide for any such restriction.
36.The only defence of the defendant is that plots are not available for allotment. This defence cannot be accepted in view of specific admission of DW1 Mr. R. K. Meena that vacant plots are indeed available. PW3 Mr. K. L. Maurya has also made the same statement in his testimony. Also, the defendant has failed to produce or prove any order of competent authority that further allotment shall not be made or any order of Delhi Government that in place of plots, flats 17/19 Parishit Vs. D. U. S. I. B. Suit no.227/11 shall be allotted. Hence, the said defences are rejected.
37.The defendant is under an obligation to provide alternate accommodation to the plaintiff as per the terms of its scheme. The plaintiff is entitled to mandatory injunction directing the defendant to allot a plot to the plaintiff under the INSITU upgradation scheme, in the vicinity, subject to the plaintiff depositing a sum of Rs.1680/ in the office of the defendant and subject to the plaintiff fulfilling other terms and conditions of the scheme. The allotment shall be on leasehold basis akin to other allotments under the scheme. Possession of the said plot shall also be handed over to the plaintiff subject to his compliance with terms of allotment. This shall be subject to availability of plots under the said scheme. Issue no.3 "Relief."
38.In the aforesaid facts and circumstances, the suit is decreed in favour of the plaintiff and against the defendant. A decree of mandatory injunction is passed directing the defendant to allot a plot to the plaintiff under the INSITU upgradation scheme, in the vicinity, subject to the plaintiff depositing a sum of Rs.1680/ in the office of the defendant and subject to the plaintiff fulfilling other terms and conditions of the scheme. The allotment shall be on leasehold basis akin to other allotments under the scheme. Possession of the said plot shall also be handed over to the plaintiff subject to his compliance with terms of allotment. This shall be subject to availability of plots under the said scheme.
18/19 Parishit Vs. D. U. S. I. B. Suit no.227/11 Parties are left to bear their own costs. Decree sheet shall be prepared.
File be consigned to record room.
Announced in the open Court on 26 September 2013.
th (Ashish Aggarwal) ASCJcumJSCCcumGJ NorthWest District,Rohini Courts, Delhi.
19/19 Parishit Vs. D. U. S. I. B. Suit no.227/11