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2002 DIGILAW 1789 (DEL)

SAWAN SANITARY AND IRON STORE v. UNION OF INDIA

2002-11-28

SANJAY KISHAN KAUL

body2002
SANJAY KISHAN KAUL, J. ( 1 ) THE petitioners in the three petitions were unauthorised occupants of public land in basant Nagar and were carrying on the business of iron and steel. The petitioners were removed from their sites in the period 1975 to 1977 when an operation was carried out by the respondent DDA in various parts of Delhi for shifting non-conforming trade/ industries. The petitioners were allotted plots of 84 sq. meters each at Madangir at the rate of Rs. 4,183/- per sq. meter and the petitioners were aggrieved by the said rate. The petitioners filed the writ petitions impugning the said demands and sought a direction that the rates to be charged from the petitioners should be predetermined rates of Rs. 69/- per sq. yards: ( 2 ) THE rate of Rs. 69/- per sq. yds arises from a policy decision for relocation of iron and steel traders situated at Motia Khan where such rates were applicable. Thus the contention of the petitioners is that the same rates are liable to be applied to the petitioners who have been dislocated from Basant Nagar as no distinction can be made between the occupants at Basant Nagar and Motia Khan who were unauthorised occupants of the land in question carrying on the same trade of iron and steel. ( 3 ) LEARNED counsel for the petitioners thus contends that it is only predetermined rates which should be made applicable to the petitioners treating them at par with the occupants at Motia Khan. Learned counsel has also referred to rule 6 (5) of the Delhi development Authority (Disposal of developed Nazul Land) Rules 1981 to contend that the DDA is liable to allot nazul land at predetermined rates in cases where industrialists or owners and occupiers of warehouses are required to shift from non- conforming areas to conforming areas under the Master Plan. Learned counsel contends that the petitioners are occupiers and would fall under the category of warehousing since no industry or manufacturing activity was carried out by the petitioners. The last contention advanced by learned counsel for the petitioners is that a civil suit was filed in the trial court in respect of similarly situated person being one Garjesh Sharma and the said suit was decreed by the court of the Sub judge on 19. 2. The last contention advanced by learned counsel for the petitioners is that a civil suit was filed in the trial court in respect of similarly situated person being one Garjesh Sharma and the said suit was decreed by the court of the Sub judge on 19. 2. 1994 holding that the plaintiff therein was entitled to the alternative accommodation as per the predetermined rates according to rule 6 (5) of the said Rules. It is stated that the appeal filed by the respondent dda against the same was dismissed by the learned ADJ and the Regular second Appeal was also dismissed. This was followed by dismissal of the SLP filed against the order. The order in the SLP records that the said petition is dismissed both on ground of delay and on merits and order was passed on 3. 4. 98. However, the orders stated to have been passed in RSA have not been placed on record. ( 4 ) LEARNED counsel for the respondent, on the other hand, relied upon the averments made in the counter affidavit filed by respondent No. 2 DDA. It is stated in the counter affidavit that the policy decision taken in case of Motia Khan would not apply to the case of the petitioners since the petitioners were not occupants encroaching upon the public land at Motia Khan but the petitioners were encroaching upon public land at Basant nagar and the policy in question was only for motia Khan. It is further stated that a decision was taken for the alternative allotment to the evictees of Basant Nagar in June, 1984 whereby plots at Madangir LSC were allotted and the rate of Rs. 4,183/- per sq. meter was fixed by the Finance Department of DDA taking into consideration the FAR of 100. It is further stated that the rates are reasonable and there cannot be a comparison between the rates at Madangir as compared to mayapuri or Naraina Industrial Area where the evictees of Motia Khan were provided with alternative allotment. It is also stated that different policies have been -evolved for different years in question. However, it may be added here that no such policy decision has been placed on record. It is also stated that different policies have been -evolved for different years in question. However, it may be added here that no such policy decision has been placed on record. ( 5 ) IN so far as the contention of the learned counsel for the petitioner in respect of the applicability of rule 6 (5) is concerned, it is stated that the petitioner does not fall within the category of persons to whom the said rules would be applicable as he is neither an owner nor occupier of ware houses and was in fact occupant of Government Land unauthorisedly. It was in order to rehabilitate such persons that the DDA had taken a policy decision to allot such persons commercial plots as of 84 sq. meters in the lsc, Madangir. ( 6 ) IN the counter affidavit it is further stated that a representation was received from the petitioners in 1986 that their case should at least be treated at par with the allottees of baikunth Colony by charging cost of land @ rs. 400/- per sq. meter. However, this request was also not acceded to since the said rate was fixed at the time of allotment in Baikunth colony in the year 1979 and the rates applicable in the Zamroodpur Shopping complex were applied. Further in the case of the petitioners the alternative sites were approved only in June, 1984. ( 7 ) IT is further stated that the plots allotted to the petitioners are commercial plots while the plots allotted to the evictees of Baikunth colony were in the Auto Repair Complex. It may be noticed that interim orders were passed in favour of the petitioners against cancellation and thus though the cancellation letters were issued the same were recalled. Further on the request of the petitioners by - interim applications to seek possession of the plot on the basis of payment at predetermined rates, the same was declined on the ground that in case the petitioners were desirous of occupying the plots in question the same could be done only after making the payments as per the demand of the respondent since the issue was still sub-judice as to whether the petitioners were entitled to the land in question at predetermined rates. ( 8 ) I have considered the submissions advanced by learned counsel for the parties. ( 8 ) I have considered the submissions advanced by learned counsel for the parties. ( 9 ) THE first aspect to be considered is the application of the rules. Rule 6 provides for allotment of Nazul Land at predetermined rates in the cases specified in the said rule. The said rule is as under:- "6. Allotment of Nazul Land at predetermined rates- Subject to the other provisions of these rules the Authority shall allot Nazul land at the predetermined rates in the following cases namely- (i) xxx (v) to industrialists or owners and occupiers of ware houses who are required to shift their industries and warehouses from non-conforming areas to conforming area under the Master plan, or whose land is acquired or is proposed to be acquired under the act. " ( 10 ) A reading of the aforesaid rule shows that the predetermined rates would be applicable to cases of industrialists or owners and occupiers of warehouses. The petitioners are certainly not industrialists or owners and thus the question which would arise for consideration would be whether such petitioners who are encroachers on public land and are carrying the business of iron and steel can be categorised as occupiers of warehouses who have been required to shift from non-conforming areas to conforming areas under the Master Plan. In my view the petitioners cannot fall within the said category, occupation of land has to be in the nature of some legal occupation. Encroachers on public land cannot be categorised as occupiers for the benefit of the said Rule. If the contention of the learned counsel for the petitioners was to be accepted it would imply that a person who encroaches and sits on public land would be entitled to an alternative land at predetermined rates on his being removed from the site in question. This would be a premium on illegality of occupation. Even on a plain reading of the said sub-rule the petitioners cannot fall within the said category. ( 11 ) THE second contention which arises for consideration is whether the resolution relating to Motia Khan would ipso facto apply to the case of the petitioners by reason of the fact that the petitioners were carrying on a similar trade on Iron and Steel and were also removed from their earlier occupation of the. public land. ( 11 ) THE second contention which arises for consideration is whether the resolution relating to Motia Khan would ipso facto apply to the case of the petitioners by reason of the fact that the petitioners were carrying on a similar trade on Iron and Steel and were also removed from their earlier occupation of the. public land. Admittedly the resolution has not been made applicable to other areas and is confined to Motia Khan. In my considered view unless the said resolution or decision is made specifically applicable to other areas the same cannot be said to ipso facto apply to all other areas merely by reason of the category of persons being of encroachers on public land and carrying on similar trade. ( 12 ) THE rationale for the difference in pricing has also been explained in the counter affidavit filed by respondent No. 2. It is has been stated that Madangir LSC is a superior commercial area and commercial plots had been allotted. Thus these persons were relocated in the same South Delhi area and as a consequence thereof the rates had been fixed. In fact the petitioners should have been more than satisfied that they were given alternative plots where they would have legal title even though they did not have any legal title for such allotment being encroachers on public land carrying on business on the said land. ( 13 ) IN so far as the issue of discrimination is concerned, the same would not arise in the present case because areas where the two groups of people have been relocated in dissimilar. ( 14 ) THE last aspect to be considered is the effect of the orders passed in a similar case by the trial court and which is stated to have been confirmed by Supreme Court. I have gone through the judgment of the trial courts. Apart from saying that a declaration is issued aad the rules in question have been applied I find no discussion on the controversy in question as to how and in what manner these Nazul Rules are sought to be applied in the cases of the kind of petitioners and in what category the petitioners fall so as to entitle them to be covered under the said rule. The judgment in the RSA of the High court is not available. The judgment in the RSA of the High court is not available. Further the Supreme court order only dismissed the SLP on grounds of delay and merit. There is no discussion on the issue in question so as to lay down any law on the issue which could have been made applicable to the case of the petitioners as contended by the learned counsel for the petitioners. ( 15 ) IN view of the aforesaid I find no merit in the writ petitions. Dismissed. Interim orders stand vacated.