Sharda Gautam v. Delhi Urban Shelter Improvement Board & Anr

RAJIV SAHAI ENDLAW, J JULY 17, 2018 Pk..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: 17th July, 2018 + SHARDA GAUTAM & ORS. ..... Appellants Through: Mr.Haji Mohd. Yameen, Adv. versus DELHI URBAN SHELTER IMPROVEMENT BOARD & ANR ..... Respondents Through: Ms.Mini Pushkarna, Adv. for R1 CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure ('CPC') impugns the judgment and decree [dated 31st August, 2016 in RCA No.41/2016, New No.61049/2016 of the Court of Additional District Judge-02, Central, Delhi] allowing the first appeal under Section 96 of the CPC preferred by the respondents/defendants and setting aside the judgment and decree [dated 8th March, 2011 in Suit bearing No.558/2004, New No.519/2008 of the Court of Additional Senior Civil Judge, Delhi] in favour of the appellant/plaintiff. 2. This appeal came up first before this Court on 5th December, 2016, when notice thereof was issued and the following substantial question of law was formulated: "Whether under the policy of Slum Clearance, a slum dweller living in his independent premises can be dispossessed without providing any alternative accommodation?" 3. Vide subsequent order dated 16th February, 2017, the trial court record was requisitioned. The appeal has since been adjourned from time to time. Counsel for the appellants/plaintiffs and the counsel for the respondent No.1/defendant have been heard and the trial court record requisitioned perused. 4. Sh.Tara Chand Gautam, the predecessor of the four appellants/ plaintiffs, instituted the suit from which this appeal arises pleading: (i) that he had been residing in house No.2662, Ward No.8, Gali Hari Shankar, Kala Masjid, Delhi – 110006, a slum cluster, since 1974 along with his family members; (ii) that the aforesaid premises were demolished by the demolition squad of DDA (Slum) on 22nd June, 1984 and a certificate dated 29th September, 1984 was issued by Assistant Director (Unauthorized Construction) of the appellant/plaintiff having surrendered the said accommodation and the same having been demolished; (iii) that though the appellant/plaintiff was assured of allotment of alternative accommodation but inspite of repeated requests and reminders of the appellant/plaintiff, no decision was taken; (iv) that the Slum & JJ Department subsequently came under the MCD and a letter dated 13th November, 2001 was received by the appellant/ plaintiff asking the appellant/plaintiff to furnish certain documents; (v) though the appellant/plaintiff furnished the documents sought from him, but still he was not allotted alternative accommodation and another letter dated 19th November, 2001 again asking him to furnish other documents was received; (vi) that vide letter dated 12th May, 2004, the Slum & JJ Department intimated the appellant/plaintiff that there was no policy in existence whereunder any flat could be allotted to the appellant/plaintiff; (vii) that the other residents of the locality who had also made similar applications were allotted the flats. Hence, the suit for declaration of eligibility of the appellant/plaintiff for alternative accommodation under the policy and for mandatory injunction directing the defendant/MCD and Slum & JJ Department to allot alternate accommodation to the appellant/plaintiff. 5. The Slum & JJ Department opposed the suit by filing written statement, pleading: (i) that the suit was barred by delay and laches; (ii) that the appellant/plaintiff had no locus standi; (iii) that the appellant/plaintiff was not residing at Property No.2662, Gali Hari Shankar, Kala Masjid, Delhi – 110006; (iv) that the respondent/defendant, in the year 1984, had demolished the property in question under its policy; (v) that merely for the reason of residence of a person at slum property, he does not become entitled to alternative flat; (vi) that there was a cut-off date for deciding the eligibility of the occupant for the purposes of allotment of alternative accommodatio