OM PRAKASH Vs. DELHI DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) THIS is an application under Order VI Rule 17 of the Code of Civil Procedure by the petitioners seeking amendment to the petition. The plea of the petitioners is that they have sought directions against the respondent to provide the statement of total dues against them and to withdraw the cancellation of allotment of kiosk/shop/stall/shed No. 15 and 17 situated at chotti Subzi Mandi at Tilak Nagar, New Delhi.

(2.) THE contention of the petitioners is that they were issued possession letters dated 13th September, 2004 but possession slips were given on 24th February, 2005 and even the workable possession has not been given to the petitioners till date. The plea of the petitioners is that pursuant to the directions by the Court, the entire amount demanded by the respondent has been paid. However the condition of the stalls allotted to the petitioners is stated to be bad and unhygienic and the respondent is allegedly not doing anything to improve the condition. According to the petitioners it is not possible and feasible to sit there and the stalls cannot be used for doing any kind of business. In the circumstances, petitioners have contended that the respondent has no right to remove or stop the petitioners from hawking in the Nehru Place. According to the petitioners, the respondents are also to create 64 locations for hawkers space at District Center, Nehru Place.

(3.) IN the circumstances, the petitioners want to take additional grounds in support of their pleas and contentions, inter-alia that the petitioners have a fundamental right to earn their livelihood as granted under Article 21 of the constitution of India; handing over of actual physical possession of the alternative shop was the pre condition for demanding the balance amount; the shops are lying in the unworkable condition and is surrounded by garbage and waste all around; that the respondent is trying to remove petitioners forcibly from Nehru Place though they are not in a position to give physical possession of alternative shops; the status quo has to be maintained as per the National Capital Territory of Delhi Laws (Special provision) Act 2007 and because respondent is liable to create 64 locations of hawkers space at District Center, Nehru Place, New Delhi. The petitioners have contended that the amendments sought by them are necessary for determination of real controversies between the parties and no prejudice shall be caused to the respondent, if the amendments sought by the petitioners are allowed. The application is contested by the respondent contending inter-alia that the amendments sought are an afterthought and is an attempt to tide over the material facts which has been suppressed by the petitioners and which had been pointed out in the counter affidavit already filed by the respondent. It is contended that the plea regarding unworkable condition or not having reasonable infrastructure has not been taken in the writ petition and in the circumstances the ground regarding the facts not alleged in the writ petition cannot be allowed to be taken by the petitioners. It is contended that no averment has been made regarding the alternative stalls allotted, not being in a workable condition. In the circumstances, it is contended that the application is not maintainable at this stage. The respondent has also contended that the area is lying clean and the stalls are in usable conditions and some photographs of the stalls are also produced along with the reply. It is further contended that since the area is lying vacant, it is bound to get dirty and unhygienic especially in a vegetable market. The unhygienic condition is also imputed on account of the same being occupied by the neighours in absence of the stalls being occupied by the allottees. This is also contended that the services of the area in question have been transferred to the MCD and the work of maintenance of the area is to be looked after by the said agency. Regarding the removal of the petitioners, it is asserted that the vendors including the petitioners have been removed from Nehru Place in 1996 and thereafter the alternative stalls were given to the petitioners. It is also contended that Nehru Place District Center has been declared as a Zero Tolerance Zone by the Lieutenant Governor after Nehru Place complex was transferred to DDA for upgradation, rejuvenation and maintenance. In the circumstances, it is contended that no hawker can be permitted at Nehru place and, therefore, the additional grounds I to N are not maintainable and the petitioners are not entitled for any relief on the basis of same. Regarding ground I it is contended that the possession of the stall had already been handed over to the petitioners way back on 24th February, 2005. Regarding the proposed ground J it is contended that it is not maintainable in view of the categorical stand of the DDA in para 4 of its counter affidavit. It is contented that the third ground K does not survive. Regarding ground L it is contended that the same cannot be entertained in view of the order dated 10th September, 2008. Regarding ground M it is contended that it also does not survive in view of the lapse of the Act relied on by the petitioners and regarding creation of additional hawking spaces it is contended that no hawking spaces are to be created by the respondent.