Gurmeet Singh v. Delhi Metro Rail Corporation Ltd

16. Further directions were issued to DMRC by this court vide order dated 10.11.2010 and in terms thereof, DMRC issued a letter dated 27.10.2010 to the petitioners informing them as to the terms and conditions to be complied for issuance of the allotment letter in respect of the shops allotted to them. The terms and conditions included the requirement of filing an affidavit affirming that all dues payable to MCD/NDMC would be cleared.

17. In compliance of the aforesaid letter, the petitioner (in W.P. (C) 1023 of 2012) vide letter dated 24.11.2010, deposited a demand draft bearing No. 052726 dated 23.11.2010 for ₹9,00,000/- and also submitted the necessary documents as required. Similarly, the petitioner in W.P. (C) 1024 of 2012, deposited a demand draft bearing no. 036204 dated 24.11.2010 for ₹ 9,00,000/- and also submitted the requisite documents.

18. In the meantime, the other project affected shopkeepers started receiving possession of the shops at BVSM Complex allotted to them as per draw of lots. However, the possession of the respective shops allocated to the petitioners were not handed over to them.

19. DMRC contends that the names of the petitioners were not in the list of licensees and Tehbazari holders of MCD. DMRC also contends that out of approximately 192 shops at Panchkuian Road, only three shops (including the shops occupied by the petitioners) have shop numbers ending with “A”. According to DMRC, the abovementioned fact establishes that the shops of the petitioners were not allotted to them but were illegal encroachments. Further, there is a dispute in regard to the period during which the petitioners were operating from the shops in question.

20. The petitioners sought to obtain information under the Right to Information Act pertaining to their shops and the communication/ notes exchanged inter-departmentally in the office of DMRC. In the inter departmental communication/ note dated 6.12.2010, the CE/ PD had sought clarifications/ opinions from the General Manager- Legal as to whether the allotment letter can be issued to the shopkeepers of shops Nos 116A, 131 A and 145A, whose names do not figure in the MCD/ NDMC list. DMRC also sought and obtained opinion dated 15.12.2010 from its counsel on the aforesaid issue. It is stated that DMRC’s counsel had, inter alia, opined as under- “What is required is substantial ownership right in the shop in lieu of which another shop is being given by the DMRC. The ownership of the shop at Panchkuian Road is not being supported by MCD/ NDMC, therefore, the said shopkeeper shall have to substantiate their rights by way of appropriate legal proceedings.”

21. The information obtained by the petitioners also indicates that matter was internally deliberated and discussed amongst the senior officers of DMRC and it was opined by the General Manager-Legal and CE/PD vide their note dated 20.04.2011 that the petitioners bearing shop nos. 145A and 131A, are bonafide PAPs and are eligible for allotment of the shops in BVSM.

22. The Chief Engineer/ PD, DMRC, sent separate letters dated 08.06.2011 informing the petitioners that their ownership was not supported by the MCD/ NDMC records and the petitioners were required to substantiate their rights by way of appropriate legal proceedings. The petitioners were also informed that alternate shops at BVSM Complex cannot be allotted to them and the amount paid by them would be refunded.

23. The petitioners filed civil miscellaneous applications (bearing C.M.Nos 11382/2011 and 11380/2011) in the writ petition (W.P. (C) No. 2915/2010) seeking to assail the aforesaid decision and further prayed for a direction to DMRC to handover possession of the alternate shops. However, on 03.02.2012, the petitioners withdrew the aforesaid applications with the liberty to file a fresh writ petition to challenge the impugned letters dated 08.06.2011 issued by DMRC, whereby the allotment of the alternate shops to the petitioners were cancelled. By the said order dated 03.02.2012, this court further directed that for a period of 15 days, the shops in question would not be allotted by DMRC to any other person.

24. On 19.10.2012, this Court vide a common order in the present petitions directed that a draw of lots would be held for 143 shops but qua 142 shop owners. The result would be that one shop on a random basis would be made available to one of the petitioners i.e. Gurmeet Singh or Gurpreet Singh (i.e. the petitioners in W.P. (C) 1023 of 2012 and W.P. (C) 1024 of 2012 respectively). It was directed that the petitioner who is successful out of the two, will get the 143rd shop and this would entail that DMRC would have to construct the additional shop i.e. the 144th shop. However, the same would be subject to the final outcome of W.P. (C) 1023 of 2012 and W.P. (C) 1024 of 2012. Reasoning and Conclusion

25. The petitioners have founded their claim for being allotted alternate shops at BVSM Complex on two premises. First, they claim that they are PAPs and, therefore, are entitled to be rehabilitated / relocated in terms of the “Relocation and Rehabilitation Policy in respect of the Project Affected Persons of all Categories due to the Implementation of Delhi MRTS Projects.” Second, that DMRC is estopped from contesting the petitioners claim in view of the commitment made by it during the proceedings relating to appeals preferred by DMRC and MCD (being LPA No. 1609/2006 and 1653/2006 preferred by DMRC and LPA No. 1218/2007 and 1225/2007 preferred by MCD) against an order dated 02.06.2006 passed in W.P.(C) 18287-391/2005 captioned “Panchkuian Road Refugee Vyapar Sangh & Others v. Delhi Metro Rail Corporation and Others”. The petitioners also rely on the order passed by the Division Bench in W.P.(C) 2915/2010 in this regard.

26. In view of the above, the first and foremost issue to be addressed is whether the petitioners are entitled for relocation/rehabilitation in terms of the relevant policy (Relocation and Rehabilitation Policy in respect of Project Affected Persons of all Categories due to the Implementation of Delhi MRTS Project).

27. At this stage, it is necessary to refer to the eligibility conditions as set out in the said policy. The same are reproduced below:- “(1) Eligibility conditions for being covered under Relocation and Rehabilitation Policy. (a) The guidelines on Relocation and Rehabilitation Policy for Project Affected Persons will be uniformly applicable for all phases of MRTS Project. (b) Those whose shops/residence or workshops/industrial units got affected in such a manner that they have to leave the said premises. In case of premises where only small part, (less than 50%) has been taken and the occupant, continues to reside/work from there, will not be eligible for rehabilitation under this scheme.

(c) In case of shops, the persons doing business, whether he is the owner of land or the tenant, will be eligible.

(d) In case of premises being used as residential units the rehabilitation will take place only in case of owner residing there. The tenants will not be eligible under the scheme. (e) The treatment in respect of workshops/industrial units would be the same as those of industrial shops indicated above.”

28. As is apparent from the plain language of Clause (c), the person doing business in a shop would be eligible for the benefit of the policy irrespective whether such person was an owner of land or the tenant. In the present case, the petitioners are neither owners of the land nor tenants of the shops in question. Concededly, there is no material on record to establish that erstwhile Municipal Council of Delhi had ever issued any license or permission for the petitioners to occupy the premises in question – shop nos. 145A and 131A Panchkuian Road, New Delhi.

29. In view of the above, this Court must proceed on the basis that petitioners are rank encroachers who had encroached upon the Government land and constructed a shop thereon. Admittedly, the petitioners were not issued any tehbazari licenses. Therefore, it is difficult to accept that the petitioners fulfil the eligibility criteria as set out in the policy. This Court is unable to accept that a rank encroacher on Government land is also entitled for allotment of alternative site/shop as a PAP.

30. The next contention to be addressed is whether DMRC is estopped from questioning the right of petitioners to be allotted alternative shops in view of the commitments made in various proceedings before this Court. The petitioners rely heavily on the decision rendered by this Court in Panchkuian Road Refugee Vyapar Sangh & Others v. Delhi Metro Rail Corporation and Ors.: W.P.(C) 18287-391/2005 and Panchkuian Road Furniture Manufacturers Association v. Delhi Metro Rail Corporation and Ors.: W.P.(C) 17190- 17272/2005, decided by a common judgment rendered on 02.06.2006.

31. The petitioners claim that they were also petitioners in the said petition and a Coordinate Bench of this Court had allowed the aforesaid writ petition instituted against the notice issued by DMRC for eviction and demolition of their respective shops. The petitioner in W.P.(C) 1024 of 2012 (Sh. Gurpreet Singh) was arrayed as petitioner no.77 in W.P.(C) 18287-391/2005 and the petitioner in W.P.(C) 1023/2012 (Sh. Gurmeet Singh) was arrayed as petitioner no. 92 in the said petition. It is contended that since the petitioners had succeeded in the said petition, DMRC was restrained from evicting the petitioners except in accordance with law. It is earnestly contended that the right of the petitioners was accepted. MCD and DMRC had preferred to appeal against the said judgment before the Division Bench of this Court and in those proceedings a settlement was arrived at between the parties.

32. This Court is of the view that no reliance can be placed by the petitioner on the judgment dated 02.06.2006 of this Court in Panchkuian Road Refugee Vyapar Sangh and Ors. v. Delhi Metro Rail Corporation and Ors. (supra). This is so because the said judgment was rendered on the basis that the petitioners therein were rehabilitated at the said market by the concerned authorities and were licensees of MCD in respect of shops occupied by them. This was the assertion made by the petitioners in the writ petition filed before the Court. Paragraph 4 of the said writ petition is relevant and is set out below:- “4. That this market was originally set up by the NDMC in the year 1949 and this market was under the exclusive jurisdiction of NDMC. However, in year 1965 government carried out reallocation of jurisdictions between the two municipal bodies namely Municipal Corporation of Delhi

(MCD) and New Delhi Municipal Council (NDMC) respectively. Consequently, the shops of the petitioner nos. 2-23 continue to be on the NDMC land and the shops of petitioner nos. 24-105 falls within the jurisdiction of MCD. The Petitioners have put up their shops and erected permanent superstructures thereon. The Petitioners are the lessees, irrevocable licensees of the MCD and some of them are even holding Teh-Bazari rights from the MCD. These shops came to be established in the years 1949 and 1975 respectively when Petitioners, who are the displaced migrants, were rehabilitated here to carry out business activities & provide sustenance to their families after having come to India from Pakistan after partition. As per the terms of the agreement between the petitioners and the municipal bodies the land may be recalled only by the relevant authority and that too for a “public purpose” alone. However, as is demonstrated neither has the relevant authority called upon the petitioners to vacate land and nor is the public purpose spelt out in the said notice.

33. 105 petitioners had joined together to file the afore-mentioned petition (W.P.(C) 18287-391 of 2005). The aforesaid statement made in the writ petition may have been correct as far as the other petitioners are concerned but it was, plainly, incorrect insofar as the petitioners are concerned. Neither Sh. Gurmeet Singh nor Sh. Gurpreet Singh, who were shopkeepers of Shop No. 145A and 131A respectively, were granted any lease or license in respect of those premises. This Court had examined the question whether the shopkeepers who were granted lease/ license in respect of the shops could have been evicted without following the process of law and had answered the said question in the negative.

34. This Court vide its judgment dated 02.06.2006 had referred to the decision of the Supreme Court in Rama Gowda v. M. Varadappa Naidu: (2004) 1 SCC 769, wherein it was held that if a trespasser in a settled position of the property belonging to the rightful owner, the rightful owner would have to take recourse of law to evict the trespasser. The Court had thereafter examined the law as laid down in various decisions of the Supreme Court including decisions in the cases of Annamallai Club v. Government of Tamil Nadu, (1997) 3 SCC 169; Express Newspapers Pvt. Ltd. V. Union of India: AIR 1986 SC 872 and Ashoka Marketing Ltd. v. Punjab National Bank: (1990) 4 SCC

406. It is relevant to note that those are cases where the parties have been put into possession by the concerned authorities and the licenses / lease had been terminated subsequently. This Court also examined at length the distinction between a lease and a license, since the petitioners, before it, were claiming interests in the properties occupied by them. Finally, this Court concluded that the petitioners could not be ejected forcibly. The decision had proceeded on the basis that the petitioners therein had a legal right for possession of their shops. Paragraphs 41 and 42 of the said decision are relevant and are set out below:- “41. As I have already stated above the Petitioners possess legal rights for continued possession of their shops which can be brought to an end only through pursuit of due process of the law. Alternatively, by mutual agreement all the parties may agree to relocation. Since none of these circumstances have come about in the present case, the Petitioners cannot forcibly be ejected. In holding so I am not ruling on the acceptability or legal propriety of the Relocation Scheme. Having said this, however, it is certainly arguable that since the DMRC has been allotted land for the specific purpose of relocation of the Petitioners, its first obligation is towards them and not towards making profits from development of the land with the objective of earning revenues to cover the costs of the Delhi Metro. I do not need to return a finding on the Relocation Scheme and, therefore, refrain from doing so. For the same reasons there is no necessity to analyse the various provisions of the DMC Act or cognate statutes in order to cogitate upon the powers and duties of the State. The Court would be failing in its duties if it were to succumb to arguments of public necessity or interests in the face of refusal of the State to pursue legal remedies.

42. These writ petitions must be allowed on the short ground that the Respondents have failed to pursue legal avenues for the ejectment or removal of the Petitioners from shops which have been in their possession for several decades. In the circumstances of the case the parties shall bear their respective costs.”

35. It is also apparent from the opening sentence of paragraph 41 of the said decision that the Court had proceeded on the basis that the petitioners possessed a legal right for continued possession of their shops. While this statement may have been correct in respect of other petitioners in that case, it is certainly not correct insofar as the petitioners in this petition are concerned.

36. In view of the above, this Court is unable to accept that the petitioners can be permitted to draw any benefit out of the said judgement dated 02.06.2006.

37. As noticed hereinbefore, the aforesaid decision was not accepted by DMRC and MCD and they preferred respective appeals before the Division Bench of this Court (LPAs 1609 and 1653/2006 preferred by DMRC and LPAs No. 1218 and 1225/2007 preferred by MCD). The said appeals were taken up together alongwith two other writ petitions being W.P.(C) 13507-58 and 13540-41/2006. In the aforesaid proceedings before the Division Bench, the proposal was made on behalf of DMRC that all license holders would be given alternate shops on a lease of 30 years on concessional rates. The relevant extract of the order dated 22.08.2006 passed by the Division Bench recording the aforesaid proposal is set out below:- “Without prejudice to the rights and contentions of the parties, Mr. Jaitley has given a proposal that all the licence holders, although their licences were terminated, shall be given a lease for 30 years on concessional rate, which, according to him, comes to Rs.9.[5] lacs approximately for an area of about 160 sq. ft. At the first instance, all the furniture market licensees numbering about 200 shall be allocated space in the existing building, i.e. 49 shall be allocated on the ground floor and rest on other floors of the building. However, the plans shall be sanctioned by NDMC and a building shall be constructed adjoining the said building which is already constructed and remaining furniture shops of upper floors shall also be given space on the ground floor in the proposed building. Counsel for the respondents pray for some time to seek instructions from their respective clients. Renotify on 29.08.2006. Standing Counsel for respondent-NDMC shall remain present on the date fixed.”

38. It is clear from the above that the proposal given by DMRC was only to accommodate “all the license holders” whose licenses had been terminated and not rank trespassers. Plainly, the said proposal was not for the benefit of the petitioners who had never been issued any license by MCD/NDMC. The aforesaid proposal was accepted by the parties.

39. The order passed by the Division Bench on 15.09.2008 indicates that 104 allottees accepted the proposal made by DMRC and the remaining allottees also agreed to consider the same. A plain reading of the said order indicates that the allotment of shops would be subject to “clearance of all license fees due to the MCD.” This also makes it clear that the settlement proposal was in respect of license holders / erstwhile license holders and not rank trespassers. The aforesaid appeals were disposed of by an order dated 14.07.2009 as the remaining issue regarding accommodating the affected shopkeepers on the Ground Floor of the BVSM Complex was resolved.

40. In its order dated 14.07.2009, the Court had also noted that the land occupied by the petitioners were sought to be taken over on the basis that they were only licensees.

41. Thereafter, by the letter dated 13.11.2009, DMRC informed all shopkeepers including the petitioner regarding the scheme of relocation and called upon them to comply with certain conditions. In terms of the said letter, the shopkeepers were called upon to submit various documents and comply with certain conditions which included submission of NOC from MCD/NDMC and an eviction certificate from MCD/NDMC as proof of having vacated Panchkuian Road Shop.

42. Various shopkeepers including the petitioners filed another writ petition (being W.P.(C) 2915/2010) challenging the aforesaid condition. The said petition was disposed of by an order dated 01.10.2010. It is relevant to note that insofar as the condition for providing a NOC from MCD/NDMC is concerned, it was contended on behalf of the petitioners therein that MCD/NDMC would not give an NOC to the petitioners as there were disputes regarding the charges demanded by MCD/NDMC. In view of the above, the Court directed DMRC to not insist on the NOCs at the time of allotment. But the Court also made it clear that the petitioners would have to file an affidavit giving an undertaking that they would clear MCD/NDMC dues as finally determined in the legal proceedings, which were stated to be pending at the relevant time. The relevant extract of the said order is set out below:- “In so far as NOC from MCD/NDMC is concerned, we make it clear that as there are disputes between the petitioners and the said local authorities, DMRC shall not insist on the NOCs at the time of allotment. However, the petitioners shall file an affidavit giving an undertaking that they shall clear MCD/NDMC dues as finally determined in those legal proceedings.”

43. It is apparent from the above that even at this stage, the petitioners had not drawn the attention of this Court to the fact that they were not the licensees in respect of the shops occupied by them. It does not appear that there were any proceedings instituted by NDMC/MCD with regard to the dues payable by the petitioners herein. In the meanwhile, a draw of lots was also held for allotment of shops.

44. It is clear from the above that none of the orders passed by this Court in the earlier proceedings can inure to the benefit of the petitioners since the orders were rendered on an assumption that the shopkeepers were licensees/lessees and had occupied the shops at Panchkuain Road pursuant to grant of rights by MCD/NDMC. It is clear that the petitioners had joined other shopkeepers in filing the writ petition and contested the case without drawing the attention of this Court that their case were materially different from those of the other petitioners.

45. It is also clear that neither DMRC nor MCD had at any stage conceded to allot alternate shops to any person who was never a licensee or tehbazari holder in respect of the shops occupied by him/her.

46. Insofar as internal communications of DMRC or the opinion obtained by DMRC are concerned, the same are of no benefit to the petitioners. Views expressed by officers of DMRC internally do not create any right in favour of the petitioners.

47. In view of the above, this Court is unable to accept that DMRC is estopped from contesting the claims of the petitioners for allotment of a shop at BVSM Complex.

48. The petitions are unmerited, and, accordingly, dismissed. DMRC shall refund the amounts paid by the petitioners if not already done, with simple interest at the rate of 9% per annum from the date of receipt to the date of payment. The pending applications also stand disposed of. The parties are left to bear their own costs.

VIBHU BAKHRU, J JULY 01, 2019