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* IN THE HIGH COURT OF DEI.HI AT NEW DELHI
Date,ofDecision:19.04.2018
+ W.P.(C)2148/2017
PAPPU Petitioner
Through: Adv.(appearance not given)
CHIEF EXECUTIVE OFFICER,DELHIURBAN SHELTER
IMPROVEMENT BOARD Respondent
Through: Mr.Parvinder Chauhan,Standing counsel with Mr.Nitin Jain, Adv./DUSIB.
+ W.P.(C)2192/2017& CM APP No.9525/2017
DELHIURBAN SHELTER IMPROVEMENT BOARD Petitioner
Through: Mr.Parvinder Chauhan,Standing counsel with Mr.Nitin Jain, Adv./DUSIB.
Through: Adv.(appearance not given)
JUDGMENT
1. These are the two writ petitions which take a contra position. Writ Petition No.2148/2017 has been filed by,one,Mr.Pappu seeking compliance of the order dated 27.01.2016, passed by the Lieutenant Governor of Delhi (in short "EG".) in,Case No.13/2015, titled: Sh. Pappu V[5]. DUSIB. On the other hand, writ petition No.2192/2017 has been filed by the Delhi Urban Shelter Improvement Board(in Short"DUSIB")to assail the very same order ofwhich compliance is sought i.e. the order dated 27.01.2016, passed by the ■W.P.(C)No.2148/2017& 2192/2017 2018:DHC:8856 LG.
2. Thus, to adjudicate upon the captioned writ petitions, the following brieffacts and/or assertions are required to be noticed: 2.[1] It is the case ofthe petitioner that he along with his late mother,one, Ms. Phoola and his father, resided in a hutment bearing No.402, situate at Gauri Shankar Mandir, Shalimar Bagh, Delhi (hereafter referred to as "subject hutment"). 2.[2] The petitioner avers that his mother passed away on 31.12.1996,while his father passed away on 24.03.2002. It appears that, immediately,after the death of his father i.e. on 17.04.2002, in the wake of a demolition drive, the subject hutment was demolished. 2.[3] Concededly, the petitioner was issued a demolition slip dated 17.04.2002 and, a token No.108/402. The demolition slip and the token number was issued in favour ofthe petitioner by the Slum & JJ Department ofthe Municipal Corporation ofDelhi(in short"MOD"). 2.[4] Admittedly,DUSIB is the authority which has taken over the work of the said department i.e. MCD. 2.[5] The petitioner avers that being a daily wage worker, he did not have the necessary wherewithal and that he ran from pillar to post to have an alternate plot allotted to him in lieu of the demolished (subject) hutment. Undoubtedly, his quest lasted for nearly 10 years. The petitioner claims that he did not get any response as to why he was being deprived ofan alternate plot till he received a communication dated 14.11.2012from DUSIB.
3. Since,the entire case ofDUSIB is pivoted on the stance taken in this communication,it would be relevant to extract the same hereinafter: DELHI URBANSHELTER IMPROYEMENIBOARD GOVT.
OFNCIOFDELHI (Rehabilitation Branch) H-Block, Vikas Kiitir, IP. Estate, New Delhi-110002 W.P.(C)No.2148/2017&2192/2017 Page2of10 dated:14.11.2012 No.D-1392/DD(Rehab)/DUSIB/2012 To, Sh. Pappu, 2283, B-Block,Ph-II, Holannbi Kalan, Delhi-ri0082 Sub:Reg. Allot. Ofplotin lieu ofdemolishedjhuggie. Sir, Please refer to your grievance petition on the above cited subject received from Advisor (Pub-Welfare), CMC, GNCTD. In this regardIam directed to inform you thatasperjointSurvey Report ofJ. J. Cluster, AEBlock, GauriShankar Mandir,Shalimar Bagh, your name exists at S.No. SR -168 but asper verification report ofFSO -19, regarding your Ration Card the same wasfound 'Cancelled'. On the basis ofverification reportofFSO,circle - 19, you were not found eligible for allotment of relocation plot. Therefore, your request for allotment of plot in lieu of your demolishedjhuggi cannot be acceded to. Yours Faithfully Sd./- Dy. Director(Rehab) 3.[1] A perusal ofthe aforesaid communieation would show that two aspeets clearly emerge in the matter. The first aspect, which goes in favour of the petitioner, is that, the petitioner's name appeared in the Joint Survey Report concerning the subject area, at serial No.168. The second aspect which emerged, and has now been latched on to by DUSIB,to assail the order ofthe LG,is that, a verification was carried out by the concerned FSO regarding the petitioner's ration card and that upon verification,it wasfound to have been eaneelled. The netresult of this finding was that the petitioner was, ultimately, denied relief as his ration card had been cancelled. W.P.(C)No.2148/2017& 2192/2017 Page3of10
4. Being aggrieved,the petitioner filed a writ petition in this Court under Article 226 ofthe Constitution. This writ petition was numbered as W.P(C)2018/2014.
4.1. The writ petition was disposed of by the Court at the very threshold vide judgment dated 22.08.2014. The learned Single Judge took cognizance ofthe objection taken on behalfofDUSIB,which was that, qua the communication dated 14.11.2012, a remedy by way ofan appeal was available under Section 45 of the Delhi Urban Shelter Improvement Board Act, 2010 to the petitioner. The learned Single Judge, thus, after taking into account the objection raised on behalfof DUSIB,relegated the petitioner to an alternate remedy, while granting him liberty to file an appeal with the LG. 4.[2] As a matter of fact, the learned Single Judge observed that the writ petition would be treated as an appeal and that the LG would dispose of the same with due expedition^ though, not later than 3 monthsfrom the date ofthejudgment,uninfluenced by any delay which may have occurred in the interregnum.
5. This order was not challenged by DUSIB.
6. As a consequence ofthe direction contained in the judgment of this Court,the LG,took up the appeal for hearing and passed the order dated 27.01.2016, which,as indicated at the outset, is being assailed by DUSIB. 6.[1] 1 may also indicate that DUSIB, as a matter of fact, did file its reply before the LG in opposition to the appeal. The reason that 1 mention this aspect ofthe matter is that before this Court, DUSIB has attempted to enlarge the scope ofthe issue which arose before the LG for consideration. W.P.(C)No.2148/2017& 2192/2017 Page4of10 6.[2] The LG in the operative part of his order has observed as follows:- "Counsel stated that the said reasoning given by the respondent department that the ration card had been cancelled is irrational and arbitrary. He stated that the ration card ofthe appellant had been cancelled on the ground that the appellant had shifted outside the, said area after the demolition ofhisjhuggi. Counsel stated that the right ofthe appellant had accrued on the date of the demolition itself and his name also finds mention in the suryey list of the respondent department. He stated that the appellant belongs to the extremely poor strata of society and the alternative plot would be the only place ofshelterfor him. It was therefore,prayed that the impugned order may be set aside and the appellant may be allotted a plotin lieu ofhis demolishedslum property On behalf of the respondent/DUSIB, Counsel stated that the appellant is not eligible for allotment ofan alternative,plot because ajhuggi dweller mustpossess a valid ration card issuedprior to 31 December 1998 to be eligiblefor allotment. He stated that the ration card ofthe appellant had been cancelled as: verified by the concerned Food & Supply officer and therefore the appellant wasfound to be ineligiblefor alternative allotment ofthe plotasperpolicy. I have considered the submissions made bv both the sides and have also sone throu2h the case file. I find that the appellant has contented in the appeal that he is a holder ofa ration card since 1994 at 108/402 AE. Gauri Shankar Mandir, Shalimar Bash New Delhi but the same was cancelled as he had shifted from that place after demolition of his ihu22i in 2002. The W.P.(C)No.2148/2017&2192/2017 Page 5of10 ■J \o DTISTB has rejected the appellant's case for allotment of an alternative plot only on the ground that the appellantis notin possession ofa validration cardas thp. same had been cancelled as per revort ofthe FSO fCirlce 19). although the respondent department had admitted in the impmned order that the name ofthe appellant exists at S. No. 168 as per the joint survey reportofJJCluster. AE Block. GauriShankar Mandir, Shalimar Baeh. New Delhi. Tn view of the above discussion and taking; a lenient view. Iset-aside imvmned order and direct the CEO, DTJSIB to take steps for allotmentofan alternative plot in lieu ofthe demolishedihu22i ofthe appellant (emphasis is mine)
7. Despite the fact that the petitioner had succeeded in obtaining an order in hisfavourfor allotmentofan alternate plot,no plot was allotted to him. Resultantly,the petitioner wrote to the ChiefExecutive Officer of DUSIB on 26.07.2016. Via this letter, the petitioner sought compliance ofthe order ofthe EG,dated 27.01.2016. Since,there was no movement in the matter even after the LG's ordfer dated 27.1.2016, the petitioner approached this Court by way of writ petition No.2148/2017. As alluded above,DUSIB,being aggrieved by the order of the EG has, therefore, preferred the other writ petition i.e. WP(C) No.2192/2017.
8. Mr. Chauhan, who appears for DUSIB,has assailed the order of the EG on the following grounds:
(i) Firstly,the order ofthe EG is contrary to DUSIB's policy.
Counsel for the respondent submits that the order transgresses the eligibility criteriafixed byDUSIB for allotmentofalternative plots. In particular,it is submitted thatthere were two eligibility conditions that W.P.(C)No.2148/2017&2192/2017 ^ V/ the petitioner was required to fulfill. One, that he should have in his possession a valid ration card. Second,that the petitioner's name should have been included in the voters list.
(ii) Secondly,it is contended,'the fact,that the petitioner for a period of10 years,took no stepsto seek redressal, was fatalto his cause. 8.[1] In support of his submissions learned counsel relied upon the followingjudgments:-
(i) Judgment dated 08.01.2016, W.P.(C) No. 85/2016, titled:
BrahmaPrakash vs. University ofDelhi
(ii) Judgment dated 01.09.2015, W.P (C) 7889/2011, titled:
(iii) Judgment dated 23.11.2015, W.P (C) No.10796/2015, titled: Makhni Kaur @ Makhni Bai v^. The Delhi Urban ShelterImprovementBoard(DUSIB).
9. Insofar as the petitioner is concerned, unfortunately, his counsel appears to have deserted him. The petitioner, however,is present in the Court. The petitioner, in support ofhis case,relies upon the order ofthe LG.
10. According to me, the submission advanced by Mr. Chauhan ) cannot be accepted for various reasons. The first objection that Mr. Chauhan took was that the petitioner's ration card had been cancelled. The second objection, which, he took, was that the petitioner's name was not included in the voters list. Insofar as the first objection is concerned,the same is nottenable. 10.[1] But before I deal with the first objection, let's get out ofthe way, the second objection in the first instance. Insofar as this objection is concerned, according to me, this Court cannot consider the same as it neither found mention in the communication dated 14.11.2012 nor in W.P.(C)No.2148/2017& 2192/2017 Page 7of10 the reply filed before the LG. Therefore, this aspect cannot now be taken,to my mind,as a ground for denying the petitioner the relieffor grant ofalternative plot. 10.[2] DUSIB,to my mind,cannot enlarge the scope ofthe challenge by introducing this ground for the firsttime in the instant proceedings. 10.[3] Insofar as the first objection is concerned, in my view, the LG has rightly appreciated the circumstances at hand. The fact that the subject hutment was demolished is established if one has regard to the contents ofthe Joint Survey Report. 10.[4] It is not disputed before me that in the Joint Survey Report, prepared at the time when the demolition took place, the petitioner's name finds mention at serial No.168. Therefore, on the cut-offdate,the petitioner's hutment was,physically, available atthe subject site. 10.[5] The fact that the ration card was cancelled is not of much significance, in this case, as the factum of cancellation would also demonstrate that the petitioner,in the first instance,possessed the ration card., 10.[6] Mr. Chauhan, in that behalf submitted that, since, the petitioner contended before the LG that the ration card was cancelled because he had moved out ofsubject area, would show,that on the cut-offdate,the petitioner was notresiding in the subject area.
10.7. According to me,this is a mere speculation as the reason why the ration card was cancelled is not known, while the factum of cancellation ofthe ration card cannot be denied. The report ofthe Food Supply Officer (FSO) has not been seen, admittedly, by DUSIB's officers. This report was also not placed before the LG. It is quite possible that the ration card obtained by the petitioner, when,he was in W.P.(C)No.2I48/2017& 2192/2017 Page[8] of10 \> the subject area was cancelled because of lack of use. Either way the ration card, which was a material document, should have been placed before the LG or at least before this Court.
11. This brings me to the aspect pertaining to delay. 11.[1] In this context, it is required to be noted that DUSIB, neither before this Court when the petitioner had approached it by way ofa writ petition in the earlier round nor before the LG,took any objection with regard to latches. As a matter offact, DUSIB opposed the writ petition only on one ground, which was,availability ofan alternative remedy to the petitioner. The Court, while,relegating the petitioner to a remedy by way ofan appeal, specifically, observed that the LG should decide the appeal uninfluenced by the fact that the remedial action was delayed.
DUSIB did not assail this order of the Court. Therefore, today, in my view, DUSIB should not be allowed to contend that because there are latches, the petitioner should be denied relief. This plea, according to me,atthisjuncture,is both untenable and unfair.
12. Thejudgments which Mr.Chauhan has cited turn on the peculiar facts and circumstances obtaining in those cases. Insofar as Brahm Prakash's case is concerned,it deals with a case where the petitioner in that matter had approached the court to gain admission to an LLM course for the year prior to one in which he had been granted admission. The petitioner, in that case, was wrongly denied admission to the 2014 LLM batch. While the petitioner was attempting to glean information via the RTl route qua the denial ofadmission,he sat for the 2015 entrance exam. Having qualified, the petitioner joined the 2015 batch. The petitioner, as indicated above, sought admission thereafter in the 2014 batch. The court denied reliefto the petitioner in that matter W.P.(C)No.2148/2017& 2192/2017 Page[9] of10 for the reason that he did not institute the action within reasonable time. To my mind,thejudgment,in this matter,cannot be equated to the facts obtaining in the instant case. 12.[1] Insofar as Dayachand's case is concerned,the Court denied relief not only on the ground ofdelay but also on the ground that the original documents were not tendered/produced. Therefore, there were multiple material facts which led to the conclusion, in that case, that the relief prayed for could not be granted to the petitioner. Delay alone, did not form the bedrock ofthe conclusion reached in that case. 12.[2] The last case on which reliance was placed by Mr. Chauhan was the judgment in Makhni Kaur. In this case, the learned Single Judge relied upon the view that he had taken in Dayachand's case. This was a case where the petitioner was intimated about the allotment in 1988. The petitioner sat quiet qua her rights for nearly 17 years and therefore, the Court declined to grant any reliefin the matter. 12.[3] In the instant case, the petitioner has been struggling to get allotment in his favour and, therefore, this case, in my view, is not a pari materia with the facts obtaining in MakhniKaur's case.
13. Accordingly,for the forgoing reasons WP(C)2192/2017 filed by DUSIB is dismissed,while WP(C)No.2I48/20I[7] is allowed.DUSIB is directed to comply with the order of the LG dated 21.07.2016. -Compliance will be made by DUSIB within four weeks ofthe receipt of a copy ofthejudgment. ^tA/1 RAJIV SHAKDHER,J APRIL 19,2018 neelam