Tilak Raj Kapoor vs MCD

Vikramajit Sen, J.—In this Writ Petition it has been prayed as follows:

A. Issue a Writ of Certiorari or any other Writ, Order or Direction as may be deemed fit and proper in the circumstances of the case to call for the entire record of allotment of plots/specific numbers to know the basis of feeding number to computer;

B. Issue a Writ of Mandamus, or any other Writ, Order or Direction as deemed appropriate to direct the respondent to allot and grant the specific number for the plot booked under file cover No. 135/220 for which the requisite payment of Rs. 59,400/has already been made as demanded by the respondent;

C. Issue any other Writ, Order or Directions deemed appropriate directing the respondent Corporation to strictly adhere to the policy and decisions of meeting dated 16.9.1985 and provide all necessary amenities and facilities at the site of the new Sanjay Gandhi Transport Nagar, Samaipur Badli, Delhi;

D. AND further to grant any other relief as may be deemed appropriate in the circumstances of the case, including the costs of the petition, to meet the ends of Justice.

The case of the Petitioner, as pleaded by Mr. Gambhir, learned Counsel for the Petitioner is that his application for allotment of an alternate plot has been incorrectly and illegally rejected on the grounds that the firm, namely M/s Nagpur Bhopal Transport Company, which was transacting business from 110, New Qutab Road, Sadar Bazar, Delhi-110006 has been allotted a site in Sanjay Gandhi Transport Nagar. It is submitted that the Petitioner was transacting his business from the said site even in his individual capacity and, therefore, was eligible to an allotment of a separate plot also. No pleadings in the Writ Petition to this effect have been read out to us. However, Mr. Gambhir draws attention to the reply affidavit filed on 24.7.1989 wherein it has been stated that the Petitioner made enquiries and discovered that some transporters had been given more than one plot.

It is well settled that if an incorrect allotment has been made to any party, it does not entitle every other person to claim the benefits of such illegal allotments even under Article 14 of the Constitution of India. An illegality will not be perpetuated on the strength of the right to equality. Therefore, merely because the MCD may have committed illegality in granting more than one plot to some of the transporters, that per se would not entitle the Petitioner to claim by means of a Writ Petition, the grant of one more plot of land. Moreover, we do not know as to how much area of land other transporters were occupying.

Mr. Shankar, firstly contended that we may refer the matter back to the MCD for a fresh consideration. We are not inclined to do so as such orders are often conveniently misconstrued. It is evident that the scheme pertaining to allotment of alternate site enured to the benefit of those persons who undertook to discontinue the use of their premises on Qutab Road for carrying on transport business and that it was relative to and dependant upon the area of land that they were occupying on Qutab Road itself, since this would result in the decongestion of the area. The firm M/s Nagpur Bhopal Transport Company is a partnership concern whose partners are members of two HU Fs, the Karta of one being Mr. A.C. Kapoor and the Karta of the other HUF being the Petitioner. Both are real brothers.

So far as the MCD is concerned they have made an allotment pursuant to a survey made in the month of December, 1986. It is contended that the Petitioner had also made an application for the allotment of an alternate plot in his individual capacity. But perusal of the application shows that he did not specifically and categorically disclose in that claim that he was also using a part of plot No. 110, Qutab Road, Delhi for his individual business as well. Even if such a statement had been made, the Petitioner would not have automatically become entitled to allotment of another plot, since the allotment was to be made as per the scheme relating to the area of land in occupation of the person who was to be re-located.

In the course of hearing the Petitioner has handed over photocopy of a Sale Deed by which the Petitioner''s wife as well as the wife of his elder brother Mr. A.C. Kapur (the Karta of the other HUF which comprised the allottee firm namely M/s Nagpur Bhopal Transport Company), are the owners of Shop No. 116, New Qutab Road, Delhi. It is stated that now the transport business is being continued from this site by the Petitioner only. This is inexplicable since one of the owners is the wife of the Karta of the HUF who, along with Petitioner''s HUF, carried on business in the name and style of Nagpur Bhopal Transport Company. Prima facie it appears to us that after availing of and enjoying the benefit of the allotment of an alternate plot by the State, the Petitioner re-started the very activity which was intended to be re-located from Qutab Road, Delhi. Whether he could do so or not is a question with which we are not concerned in these Writ proceedings. Certainly since Shop No. 116, New Qutab Road, Delhi was purchased by the wives of Kartas/partners of M/s Nagpur Bhopal Transport Company in the year 1994, this would not entitle them to avail of the scheme which was related to 1970s.

Mr. Gambhir, learned Counsel for the Petitioner has emphasized on the fact that in re-survey carried out in 1988-89 the total area of 690.5 sq. meters was found to be in possession of the Petitioner, though in the earlier survey the measurement of the area was 60 sq. meters only. This re-survey, very conveniently, has been carried out by the MCD at the Petitioner''s instance. Even on a quick perusal of these papers it is evident that M/s Nagpur Bhopal Transport Company, or for that matter Mr. A.C. Kapur, Karta (HUF) and Mr. Tilak Raj Kapur, Karta (HUF) find no mention in the documents.

Moreover the re-survey includes to two different areas i.e. Dina Nath Road, Subzi Mandi and G.T. Karnal Road, near Village Siraspur, Delhi. The land at Qutab Road measures only 66.32 sq. yards. This shows that land other than the land at Qutab Road has now been included in the re-survey, we wonder why !

Mr. Gambhir, learned Counsel for the Petitioner states that Sanjay Gandhi Transport Nagar was developed by the respondents by using the amounts received from the Transporters. In the present case the firm M/s Nagpur Bhopal Transport Company had deposited a sum of Rs. 1,18,800/- and the petitioner had deposited Rs. 59,400/-. The argument, therefore, is that having enjoyed the investment made by the Petitioner the respondents should not now be permitted to reject the Petitioner''s application. We are unable to agree. The scheme devised by the respondents was given vide publicity. It would be almost impossible for the MCD to sift through every application which it receives at the initial stage. At the commencement of the scheme it may receive thousands of applications against the few plots that were available. Therefore, careful attention would be given to every application only at the time of specific allotments after ascertaining the area of plots in occupation of the applicants, which is a pre-requisite as per terms and conditions of allotment. It is not unreasonable that some applications would be rejected at that stage.

The stand of the MCD is that on the basis of the area occupied by the firm M/s Nagpur Bhopal Transport Company (i.e. 60 sq. meters or 66.32 sq. yards) an alternate allotment has already been made. We have noted above that the application form filled by the Petitioner does not clarify that he has preferred the claim in his individual capacity and if so, against which part of 110, Qutab Road, Delhi and what was the area in his individual possession which could have entitled him to receive a separate plot, in addition to the allotment of plot made to the firm.

In the Writ Petition as well as during the hearing a number of documents have been relied upon. In these proceedings it is well nigh impossible for the court to determine the authenticity of all these documents and decide upon disputed questions of facts. In this analysis, keeping the salient features of the Scheme in perspective, once prayer clause "C" is taken up for consideration, no conclusion other than rejection of the petition can be arrived at.

The Writ Petition is dismissed accordingly. However, there shall be no order as to costs.