Satyanand v. MCD Through Its Commissioner, Delhi

11. The petitioner filed the present writ petition on or about 16th July, 2008 placing the above facts urging that he was suffering unemployment since his employment stood snatched by the respondent. The petitioner prayed for issuance of a mandamus directing the respondent to hand over possession of a shop plot in Jahangir Puri and in the alternative, anywhere else. The petitioner has also prayed for compensation at the rate of Rs.5,000/- per month w.e.f. 14th October, 1980 till the date he is handed over possession. The petitioner has also prayed for inter alia award of costs on litigation.

12. It is noteworthy that no counter affidavit was filed in the present matter despite repeated opportunities. Finally by the order passed on 28th July, 2009, this court directed the respondent to file an affidavit disclosing an inventory of all shops in Delhi that have fallen vacant over since June, 1993 till date and the status thereof.

13. Pursuant to this direction, the respondents filed an affidavit sworn on the 24th August, 2009 giving a list of the following shops which have fallen vacant from June, 1993 and the status thereof:- “

1. Welcome JJ Colony Shahdara 38

2. New Seemapuri JJ Colony 20

3. Old Seemapuri JJ Colony 03

4. Nand Nagri JJ Colony 15 “

14. Perusal of the counter affidavit ultimately filed would show that there is no real defence to the claim made by the petitioner. It remains undisputed that he was entitled to the shop plot which was confirmed by the allotment effected in the year 1980 in his favour.

15. In this background, on a consideration of this information on 25th August, 2009, the respondents were directed to issue a letter of allotment to the petitioner in respect of one vacant shop in Nand Nagri, JJ Colony within two weeks; issuance of demand letter and a direction that physical possession of the shop/plot be handed over to the petitioner immediately after completion of requisite formalities.

16. The record of the instant case also shows that it is only pursuant to the orders made on 28th July, 2009 & 25th August, 2009 in these proceedings. that the respondents have finally issued a letter dated 15th September, 2009 making allotment of a shop plot no.A-1/9 in the J.J. Colony, Nand Nagri measuring 12.[5] sq. yards in which the petitioner has been put in possession.

17. The petitioner submits that he has been handed over vacant possession of the shop-plot no.A-1/9, Nandnagri, Delhi measuring 12.[5] sq.yds only on 26th November, 2009. It is confirmed by the respondents that the petitioner is in peaceful possession thereof and would be entitled to all rights which follow as a result of this allotment.

18. The petitioner has insisted that he is entitled to compensation for the harassment and loss of business which has occurred by the delayed allotment.

19. Mr. O.P. Saxena, learned counsel for the respondent has contended that the petitioner is not entitled to any relief on account of delay and laches. He submits that the petitioner approached the Lieutenant Governor in the year 1999 and has approached this court only in the year 2008 by way of the present writ petition. He submits that for this reason, he is disentitled to any compensation as well.

20. I have heard learned counsel for the parties. The petitioner has complained that despite the allotment made to him as back as on 14th October, 1980 the respondent has till the 26th of November, 2009, deprived him possession of such valid allotment. The petitioner has submitted that he has been made to run from pillar to post with repeated representations upto the level of the Lieutenant Governor of Delhi and a prior writ petition, all of which have been of no avail during this period.

21. Delay and laches do not result in an absolute prohibition to maintainability of a writ petition. Such a prohibition and restraint in exercise of discretion is exercised as a rule of practice based on sound and proper exercise of discretion. In AIR 1974 SC 259 Ramchandra Shankar Deodhar and Ors. Vs.The State of Maharashtra and Ors., it was held that there is no inviolable rule that whenever there is a delay, the court must necessarily refuse to entertain the petitioner. The question of exercise of such discretion has to be premised on the facts of each case.

22. In the instant case, the foregoing facts disclose reasonable explanation as to why there was delay in approaching this court by the petitioner. The respondents are consequently responsible for the same. There is nothing on record to show that the respondents had at any point of time, rejected the claim of the petitioner. On the contrary, they have been interacting with the petitioner.

23. The respondent has insisted that the petitioner should have occupied the 6 ft x 8 ft stall when admittedly as per their own scheme, he was entitled to a shop plot of 12.[5] sq. yards. The deprivation thereof would have undoubtedly caused difficulties to the petitioner who was deprived of a source of livelihood. Certainly, the petitioner cannot be faulted for non-acceptance of the allotment of thara instead of the shop plot to which he was found entitled.

24. When the petitioner approached this court by way of the earlier writ petition, again the respondent did not contend that the petitioner was disentitled to the shop-plot. Even on 8th August, 2000, in the proceedings held in CW No.164/1999, the respondent did not dispute the fact that the petitioner was entitled to the allotment. A stand was taken that they would allot a shop to the petitioner subject to his not pressing the claim for compensation. On this date, the respondent refused to make the allotment for the reason that the petitioner was pressing its claim for compensation. Such a stand was not only unjustified but in my view, illegal and highly improper. There is no warrant for denying the allotment of shop to the petitioner. More so, the insistence that the petitioner withdraw his claim for compensation is utterly unacceptable.

25. In the face of such plea having been taken by the respondent as back as on 8th August, 2000, it does not lie to the mouth of the respondents to urge delay and laches against a poor person in approaching the court.

26. In any case, it is not as if this petitioner was not approaching the respondent for grant of relief. There is not a whisper of explanation for why the petitioner was given a thara and not given a plot as per his entitlement and why he had to come to court for the relief of allotment and possession at all in the given facts.

27. When the petitioner approached the court, no legally tenable plea was taken which could justify the non-allotment of a shop plot to the petitioner. As noted above, nothing prevented the respondent from allotting a plot to the petitioner in any other resettlement colony even if the plot at Jahangirpuri was not available.

28. The petitioner submits that the responses given under the Right to Information Act which also appear to be sketchy and incomplete. The same also do not appear to reflect the correct position.

29. In my view delay and laches in these facts cannot be urged in the instant case against the petitioner to deny a remedy and defeat a relief to which he has been throughout admittedly and rightfully entitled. Insurmountable financial, economic and other barriers would themselves inhibit a poor person who has faced demolition, forcible eviction and displacement from his home and place of earning from expeditiously approaching the court for relief.

30. The petitioner has expressed an apprehension that the prior allottee of the plot which has been allotted to the petitioner may lay a claim with regard to the rights in the subject plot/land. This apprehension is completely illfounded in as much as after cancellation of his/her allotment, the prior allottee cannot claim any right or interest in the plot in question. The petitioner has been put in possession thereof.

31. In the given circumstances, the respondents are bound to compensate the petitioner for the delay which has occurred in making allotment of a proper shop-plot as per the entitlement for the period from 1980 till the year

2009.

32. The petitioner places reliance on a pronouncement of the Apex Court reported at (1999) 1 SCC 492 Raunaq International Ltd. Vs. I.V.R. Construction Ltd. & Ors. In this case, the Apex Court was concerned with the responsibility of private parties of compensating the public at large for the delay which caused in implementation of a public project and the costs escalation resulting on account of unwarranted order of stay against the public authorities executing such public work.

33. The petitioner also places reliance on the pronouncement of the Apex Court reported at (1994) 1 SCC 243 Lucknow Development Authority Vs. M.K. Gupta wherein the court made observations with regard to compensation for harassment, mental agony or oppression which the complainant had suffered. In this pronouncement, the Apex Court was of the view that the public exchequer should not be unnecessarily burdened if finding with regard to entitlement of compensation is reached and the court should direct recovery of the compensation from the officials of the department who was concerned with the matter.

34. It is apparent that the respondents have treated this matter casually and in routine without paying any attention to the needs of a poor person, who stands deprived of his source of livelihood.

35. It requires to be borne in mind that the petitioner has complained of loss of income for all these years from the plot in question. There is certainly substance in these contentions and his claim.

36. Mr. O.P. Saxena, learned counsel for the respondent points out that the petitioner has since enrolled as an advocate in the year 1999 and therefore would not be entitled to compensation.

37. On the other hand, the petitioner has submitted that he has merely secured enrolment with the Bar in 1999 and has no practice at all. Possession of a law degree and enrolment as a lawyer by itself does not tantamount to his having the ability to perform as a lawyer or sufficiency of funds for approaching the courts. There is no material placed on record at all which could persuade me to disbelieve the petitioner.

38. It is to be remembered that education in this country is highly subsidised. The period when the petitioner obtained a law degree does not relate to the present competitive era when the element of payment of large amounts towards fees has been introduced to legal education as well. Therefore, acquisition of a law degree by itself would not be indicative of economic sufficiency of a person. Nor does this fact evidence that the petitioner was not prejudiced or did not suffer loss. On the other hand, the acquisition of the degree manifests the petitioner's efforts at selfdevelopment despite the odds against him. In any case, even if the petitioner had been able to acquire or amass economic well being from his education, the same does not, in any, way, denigrate from the responsibility of the respondent to have expeditiously processed his allotment and handed over possession of the allotted plot. Certainly, compensation for the default and negligence of the respondents would not stand mitigated or waived by the petitioners' academic achievements.

39. The respondents wrongfully allotted a thara to the petitioner vide their letter dated 3rd December, 1980 and denied possession of the shop-plot to which he was admittedly entitled for a period of almost 29 years till 26th of November, 2009. Filing of a previous writ petition was of no avail. The present writ petition was filed around the 6th of July, 2008. The petitioner has been deprived of the shop-plot and has urged economic loss. Such delay has been occasioned despite the respondents maintaining the petitioner's eligibility and entitlement to the allotment. In the given facts and circumstances, the petitioner is required to be compensated for the failure & delay in making a valid allotment and handing over possession in discharge of not only their statutory duty but their public law and are also required to be burdened with compensatory costs for the present litigation.

40. At the same time, it requires to be borne in mind that the respondents are dealing with public moneys and any compensation and costs would be a burden on the public exchequer.

41. On a considered view of the matter, in my view a lump sum payment of Rs.5,000/- per year w.e.f. three years preceding the filing of the writ petition on the 6th of July, 2008 till the 26th of November, 2009 when possession of the plot was handed over (for five years approximately) being a total of Rs.25,000/- and token compensation @ Rs.1,000/- per year w.e.f. 3rd December, 1980 till July, 2005 (being a period of 25 years approximately) would meet the ends of justice. The respondent shall make payment of this amount within a period of eight weeks and place a status report on record.

42. In view of the above, it is directed that the petitioner shall have absolute and exclusive rights which follow from the allotment in the shop-plot handed over to him. The prayer made by the petitioner in this petition stands satisfied.

43. The instant case is one amongst several other cases where similar callousness is complained of against the respondent. The sheer lack of accountability and transparency in the allotment and in the handing over of possession process shakes judicial conscience. Several cases are being brought challenging surveys prepared for allotments in resettlement colonies against demolition of properties complaining that deserving persons have been left out.

44. It is unfortunate that such cases have to come to court despite availability of high technology which would minimise disputes. The initial survey and preparation of the lists is the first and basic essential step in the allotment. In addition, it has been noticed that time schedules for production of documents, payments and construction are fixed. Allotments are cancelled for inability of the allottees to adhere to any of such time schedule. This is clearly in disregard of the nature of the rights which have been recognised under the resettlement policy and the position of the beneficiaries thereunder. A technologically prepared survey and list will enable the respondents to keep track of the person whose property was demolished and who is entitled to allotment and resettlement. Such right to the allotment cannot be defeated on inability of the allottee to make the demanded payment of producing the documents within a stipulated time frame.

45. This court has also noticed that a person not being found in occupation of a jhuggi or not present at the site when the survey was conducted would not by itself lead to a conclusion that he was not entitled to allotment. The courts have noticed that employment or other reasons may be the cause of the absence from the place when the survey team visits the colony. In this background, a single visit survey to a settlement/proposed to be demolished is not sufficient or complete. The survey must be conducted after due notice repeated more than once and on different days of the week to enable it to be truly fair and complete. These must necessarily use technology as videography and record maintained on CDs/digital technology as is considered as safe and durable. Lists of allottees finalised thereafter ought to be published, even posted on the website/internet. Cancellation of allotment should be done after careful scrutiny and consideration of the circumstances of the allottee. In cases of financial inability, cancellation ought not to be based on inability of the allottee to make payment of the demanded amount or to construct within the stipulated time. Possibilities of unfair and irregular allotments would then be minimised.

46. These matters need urgent examination. In WP (C) No.10659/2009 entitled Shamim Vs. Additional Commissioner, Slum & J.J, MCD decided on 16th November, 2008, I have observed as follows:- “xxxxxx 17. The present case is a glaring instance of the hard reality that access to justice is not limited to access to courts. Undoubtedly, the constitutional mandate creates an ideal legal system that treats everyone equally. The legal system seeks to ensure protection of equality, liberty and justice. However, to those living on the fringes of society and are marginalised, the psychological ability and impetus to take the decision to approach the court would be lacking. There is neither the finance nor the necessary family or social support system to facilitate access to the formal justice dispensation mechanisms. Illiteracy and lack of awareness, fear and lack of trust in judicial authorities may also constitute tremendous barriers.

18. The very fact that the MCD has created the formal machinery by way of the Slum & J.J. Department concerned with housing of the urban poor, reflects the recognition of problem in Delhi. The rights which are involved are really all constituents of the right to life guaranteed under Article 21 and would include not only shelter but also education of the children, drinking water, toilets & sewage and implementation of the court directions of the Apex Court with regard to demolitions and relocations. The present case may be illustrative of a larger problem and deserves to be examined by the Delhi High Court Legal Services Committee and the Delhi Legal Services Authority who may explore the possibility of joining para clinicals and the officials of the Slum & J.J. Department to run formal legal aid clinics, if not already functioning, in the resettlement/relocation colonies and such places as may be considered appropriate.” Directions have been issued to the Secretary of the Delhi High Court Legal Services Authority & Secretary, Delhi High Court Legal Services Committee to consider issues relating to the Slum & J.J. Department.

47. A further direction is issued to the Additional Commissioner (Slum & J.J.) of the MCD to examine the above issues in consultation with the Secretary of the Delhi High Court Legal Services Authority & Secretary, Delhi High Court Legal Services Committee. They shall explore the possibilities of use of technology in undertaking the survey, digitalization of the record, computerisation and preparation of a website making complete disclosure of all identified allottees, and the allotments of the Slum & J.J. Wing to work the scheme/policy of resettlement so as to ensure transparency in the functioning and working. Any experts/NGOs who are working in the field may be joined in the deliberations, if deemed necessary, so as to get the complete view of the difficulties of the persons and their special problems. Mr. Sanjoy Ghose, Advocate shall also be joined in the deliberations inasmuch as the legal aid aspects are also required to be examined. A considered view on this shall also be taken within a period of eight weeks from today and a report filed on record. This writ petition is disposed of in the above terms. List on 4th February, 2010 for reporting compliance of the orders passed today. Copy of this order be sent to the Additional Commissioner (Slum & J.J.), MCD; Secretary, Delhi High Court Legal Services Committee, Delhi Legal Services Authority and Mr. Sanjoy Ghose, Advocate for necessary action. GITA MITTAL,J DECEMBER 02, 2009 aa