Defense Colony Welfare ... vs Union Of India And Anr.
1991 Latest Caselaw 208 Del

JUDGMENT

B.N. Kirpal, J.

(1) defense Colony Welfare Association and its Secretary have filed the present writ petition in which the prayer is that a plot of land measuring 1.56 acres situated in C Block, defense Colony should be allotted to petitioner No: 1 and vacant possession handed over.

(2) Briefly stated, the facts are that petitioner No. I is a society registered under the provisions of the Societies Registration Act. The society consists of members who are owners of properties in defense Colony and some of them are the tenants in houses therein. defense Colony was established as a project for rehabilitating the displaced armed forces and junior commissioned officers in fifty's.

(3) A big area of land was allocated for this project of establishing of the defense Colony. A lay out plan was prepared in which a big plot of land measuring about six acres situated in C Block was earmarked for a club for officers. Another plot of land in A Block was, similarly, earmarked in the lay out plan for the junior commissioned officers club.

(4) After the plots of land were sold and houses were constructed, the present Society came into existence in the year 1963. In the mean time, prior to its formation, the said area of 6 acres which had been earmarked for an officers' club was sub-divided. I acre was allotted to a school, another area of over I acre was allotted to Jain Yoga Kendra, which has constructed a building thereon. 1.576 acres were allotted to a Society from Bombay and 1.5 acres of land was vacant. Subsequently, out of this vacant land of 1.5 acres, an area of I acre was allotted to the petitioner for setting up a club, which-has now been established.

(5) It appears that the Society of Bombay surrendered the allotment of 1.576 acres of land. It is with regard to this land that the present writ petition has been filed.

(6) Apparently, on a representation of the petitioner society the respondents, on 7th November, 1979, wrote to the petitioner to the effect that the President of India had been pleased to sanction allotment of the said plot measuring 1.576 acres to the petitioner Association. This allotment was for the gymnasium and play ground. Terms and conditions of allotment were contained therein which, inter alia, provided that a premium of rupees three lakhs per acre plus annual ground rent at the rate of 2^ would have to be paid. The land could only be used for the purposes oF gymnasium and play ground and for no other purpose. It was also stipulated that no building/structure shall be allowed to be constructed on the plot of land. Thereafter correspondence was exchanged between the parties. The petitioner, originally, requested the respondents that the land should be allotted on a nominal price. It was also represented that the premium be accepted in Installments. It is represented before us that ultimately vide a letter dated 18th November, 1981, notwithstanding the earlier correspondence which had been exchanged between the parties, the petitioner Association stated in the said letter that they would abide by all the decisions and directions given by the Government. It may here be noticed that one of the terms of the letter dated 7th November, 1979 was that the gymnasium and play ground was to be maintained by the Association and was to be open to all the children and not only for the children residing in the area. Undertaking, similar to the one contained in the aforesaid letter dated 18th November, 1981, was also contained in the subsequent letter of 23rd March, 1982 whereby the petitioner sent to the respondents Bankers cheques/demand drafts for a sum of Rs. 4,84,650.00 towards the premium, ground rent and cost of preparation of the agreement. It was also represented in this letter that with regard to the approval of the lay out plan, the Association will abide by whatever decision which will emerge from the side of the respondents.

(7) The petitioner then received a letter dated 14th May, 1982 whereby it was informed that when the original offer was made to the petitioner on 7th November, 1979 the price had to be paid within a stipulated period. With. effect from 1st April, 1981 there had been a revision in the premium and ground rent with the result that the premium now payable was Rs. 9,45,600.00 and ground rent was to be Rs. 23,640.00 and the cost for preparation of the lease was to be Rs. 30.00 . The petitioners were asked to pay this amount within thirty days of receipt of this letter and it was observed that if the payment was not received the offer of allotment would stand withdrawn and cancelled. Along with this letter, the earlier cheques for Rs. 4,84, 650.00 , which had been sent, were returned.

(8) The petitioner on 24th May, 1982 made a representation to the respondents requesting them to hold the letter dated 14th May, 1982 in abeyance. Representation was also made to the Minister and other authorities requiring the respondents to re-consider its decision with regard to demand for higher premium.

(9) When the petitioner did not receive any favorable response from the respondents, it wrote a letter dated 14th March, 1983 giving a suggestion to the effect that the petitioner would be willing to pay the revised premium but it may be permitted to pay 75% of the premium before 31st March, 1983 and the balance 25% will be paid within 30 days of the issue of permission by the L & D O for mortgage of the club property.

(10) On 16th May, 1983 the petitioners then received another letter from the Government of India informing the Association that the rates prevalent prior to 1st April, 1981 could not be accepted by the respondents and the cheques which were sent were returned. The petitioner was given another opportunity to send the cheque for the amount as demanded by the respondents. On 30th May, 1983 the petitioners sent two cheques for Rs. 9,69,270.00 which had been endorsed by the State Bank of India as being good for payment. On 3rd June 1983 the petitioners sent telegrams to the respondents and to the Minister for Works & Housing, inter alia, to the effect that the full premium had been deposited and possession of the land should be handed over to the petitioner and the lease executed. It was also represented that Shri Guru Singh Sabha was trying to take possession of this land and that the Government should take appropriate steps to protect the said land. These telegrams were followed by a letter dated 8th June, 1983 in which it was, once again, reiterated that the petitioners accepted all the conditions which were laid down in the original letter of allotment dated 7th November, 1979 without any riders and it requested that lease agreement should be executed and the possession handed over. No action having been taken, the present writ petition has been filed.

(11) On behalf of the respondents, in the affidavit in reply which has been filed, there is no dispute of the aforesaid facts. The case of the respondents, however, is that the petitioners are seeking the enforcement of a contractual right and no writ petition, for this purpose, is maintainable. It is also the case of the respondents that the offer of 7th November, 1979 had lapsed as the petitioner had not accepted the conditions mentioned therein. Secondly, even the revised offer contained in the letter of 14th May, 1982 had not been accepted by the petitioners and, therefore, the respondents were under no obligation to allot the land to the petitioners.

(12) Before dealing with the contention that this Court should not exercise its jurisdiction pertaining to a matter with regard to allotment of land, it will be proper to examine the contention of the respondents that the offers which had been made had lapsed.

(13) By letter dated 7th November, 1979 the petitioner, as already noted, had been informed that the President had sanctioned the allotment of plot in question on the petitioner paying premium at the rate of Rs. 3 lakhs per acre. Ground rent at the rate of 2 1/2% was also payable. There were other conditions which were mentioned in the said letter which the petitioner was required to comply with. It was stated in this letter that if no reply was received within 30 days from the date of receipt of the letter, it will be assumed that the petitioner was not interested in the allotment and the allotment will be cancelled at the petitioner's risk. In the present case, it is not as if no reply was sent but there can be no doubt that the petitioner did not pay the sum of Rs. 4,84,650.00 , which was demanded by the respondents, within 30 days of the receipt of the said letter. However, the petitioner did pay this amount but after 30 days bad elapsed.

(14) The respondents had, in the mean time, revised the land rates with effect from 1st April, 1981. It is thereupon that a fresh offer was sent to the petitioner on 14th May, 1982. The respondents are, therefore, right in contending that the offer contained in the letter dated 7th November, 1979 was not accepted within the stipulated period. The question which, however, arises for consideration is whether the offer contained in the letter 'dated 14th May, 1982 was accepted in accordance with law or not.

(15) It has been strenuously urged by Shri Lokur that the letter of 14th May, 1982 required the petitioner to make the payment of a sum of Rs. 9,69,270.00 within 30 days of the receipt of this letter. It was also stated that if this payment was not made, the allotment will stand withdrawn and cancelled. The petitioners were also required to agree to the other terms and conditions contained in the letter dated 7th November, 1979.

(16) It is not in dispute that payment of Rs.9,69,270.00 was not made within the stipulated period. If the matter had stood at that, the petitioners would have had little chance of success. An important development took place subsequently which, in our opinion, revised the claim of the petitioner. On 16th May, 19833 the respondents wrote to the petitioner in which it was, inter aha, stated as follows:

"YOUare, therefore, requested to send the cheque for the amount as demanded in this office letter of even number dated 14.5.82 in full".

(17) The effect of this letter was that the earlier offer of J 4th May, 1982 stood revived on the terms and conditions contained in the said letter of 14th May, 1982. The letter of 14th May, 1982, in turn, referred to the earlier letter of 7th November, 1979.

(18) The effect of the letter of 16th May, 1983, therefore, was that the petitioner had to comply with the terms of the letters dated 7th November, 1979 as well as 14th May, 1982 The letter of 14th May, 1982 gave the petitioners 30 days time to pay the sum of Rs. 9,69,270.00 . There were no other conditions attached. The petitioner, admittedly, sent 'good for payment cheques on 30th May, 1983, i.e,. within 15 days of the letter dated 16th May, 1983. What is of importance is also this that in its letter of 8th June, 1983 it was also mentioned by the President of the petitioner. Association that "the Association accepts all. the conditions stipulated in the Allotment Order without any riders and requests you most earnestly to please proceed with the signing of "Agreement for Lease and "Perpetual Lease"-at our cost".

(19) From the aforesaid, it is clear that on 30th May, 1983 the amount ' demanded by the respondents vide their letter dated 16th May, 1983 had been paid and all the terms and conditions laid down by the respondents in their letters of 7th November, 1979 and 14th May, 1982 were accepted. We are, therefore, unable to agree with the contention of the learned counsel for the respondents that the offer of the respondents had lapsed before it had been accepted by the petitioners. As already noted, the offer contained in the letters of 7th November, 1979 and 14th May, 1982 had, originally, lapsed but the said offers stood revived with the issuance of the letter dated 16th May, 1983 without any further pre-conditions. This offer was promptly accepted and a vested right, therefore, arose in favor of the petitioners. We are also unable to accept the contention of the respondents that the petitioners had not accepted the various terms and conditions laid down by the respondents. It is not necessary for us to revert, in any great detail, to the various letters written by the petitioners from time to time in which they have categorically said that they will abide by the ultimate decision of the respondents on various points. In the last letter, which is most material, dated 8th June, 1983 written by the President of the Petitioner-Association, it has been categorically stated that the Association accepted all the conditions stipulated in the, allotment letter without any riders. The petitioners were only required to give their acceptance of the. terms of allotment and the said acceptance has been given in no uncertain terms.

(20) This is not a case of a simple contract. This is a case where the respondents had promised to the Petitioner-Association that, with the welfare of the general public in mind, a plot of 1.576 acres would be allotted to the. petitioners. The petitioners were to use this plot of land for a gymnasium and a play ground. The petitioners have given an undertaking to the respondents, and it was repeated before us by Mr. Kataria, that the petitioners will make no construction on the said plot of land without the approval of the appropriate authorities. It is further stated by the petitioners that till this approval to construct any building is granted, the area in question will remain green. Where, however, the State acts arbitrarily, even in a matter of a contract, the provisions of Article 14 are violated. It is now well settled that any arbitrary act, on the part of the respondents tantamounts to violation of Article 14. We have no manner of doubt that the decision of the respondents not to hand over possession of land to the petitioners and not to execute the lease deed was an arbitrary one. On 16th May, 1983 the respondents had reiterated its earlier decision to allot land to the petitioners. This offer was unconditionally accepted by the petitioners when on 30th May, 1983 full amount was remitted to the respondents. The decision of the respondents not to hand over possession to the petitioners is, to our mind, motivated by extraneous considerations. This would be evident when reference is made to some other facts, which we shall presently do.

(21) Prior to the issuance of the letter of 16th May, 1983 the petitioners had received a letter dated 23rd April, 1983 from the Government of India. By this letter, the President of petitioner No. I was asked to attend the office of the then Minister of Works & Housing in order to discuss the request which had been received for allotment of land to Guru Nanak Universal Mission. A copy of this letter was endorsed to Guru Singh Sabha. After the petitioners had sent the cheques for the full amount of premium on 30th May, 1983, it sent a telegram on 3rd June, 1983 to the respondents, inter alia, informing the respondents that Guru Singh Sabha was trying to take possession of a plot near C-600, defense Colony which had been allotted to the petitioner. The petitioners have also placed on record a letter dated 22nd November, 1984 received from the Ministry of Works & Housing whereby the petitioners were required to "confirm" that out of the land measuring about 1.576 acres, earlier considered for allotment to you, it is proposed to allot 0.60 acre of land to Shri Guru Singh Sabha and to allot, balance area to your Association for the purpose of a club. The demarcation of land would be done by the Land & Development Office at site". It appears that there was another land measuring 0.5 acres which was in the possession of Shri Guru Singh Sabha and by letter dated 22nd November, 1984 the petitioners were informed that the said land would be given back to the petitioners for the purpose of a children park on its vacation by Shri Guru Singh Sabha. The implication was very clear, namely, that out of 1.576 acres which had been allotted to the petitioner, it should agree to surrender land measuring 0.60 acres in favor of Shri Guru Singh Sabha. This the petitioner did not agree to do. In the mean time the respondents also sought to rely upon the circular which had been issued, perhaps at the instance of the Prime Minister's office, to the effect that the green nature of the land would always be maintained and that the said land would not be banded over to any one. The petitioners sought clarification with regard to this because, it appears, the said circular was issued specifically with reference to the ridge which was sought to be converted. On 4th May, 1987 letter Was written by the Prime Minister's office to the Ministry of Urban Development with a copy to the petitioner, wherein it was clarified that the instructions which had been issued earlier were not intended to cover small plots which constituted parks within residential colonies and for which no change in land-use was required. It was stated that such parks could be developed for recreation purposes by residents of the colonies. The impediment, therefore, which was sought to be placed, was removed by the said letter of 4th May, 1987. Even the Dda vide its letter dated 12th November, 1987 had informed the respondents that the land use of this 1.576 acres in the zonal plan was for recreational activities and such activities connected with sports are allowed in this category of land use. It was further stated in this letter of the Vice Chairman of Dda that "keeping in view the surrounding development, environmental aspects, circulation and parking requirements etc. also there should be no restriction at the use of such facilities by the residents of the colony". It is clear, therefore, that there was no legal impediment in the land being used for a gymnasium or a play ground as long as no structure was erected without the permission of the Municipal and other authorities. Notwithstanding the fact that the respondents had received the aforesaid clarification from Shri 0m Kumar, Vice Chairman, Dda, the Joint Secretary to the Government of India on 10th December, 1987 wrote to the President of the Petitioner-Association to the effect that as the land use was 'green' no construction could be allowed to come up. It further stated that as the Association feels that they would gain no purpose by spending money in creating and maintaining a lawn for all residents and non-residents, the question of the Government allotting the land in question to the Association does not seem to survive. Reference in this context was made to the Association's letter of 13th September, 1987. The letter of 13th September, 1987 has been completely misread by the respondents. By this letter the President of the Association bad written to the Secretary, Ministry of Urban Development to the effect that the land in question would be used for sport facilities. It was also stated that no facilities will be created without the permission or the consent of the Dda and the 'green' nature of the land will always be maintained. It was no doubt stated that little purpose would be gained by the Association spending a large sum of money in creating and maintaining lawn for all residents and non-residents, but the intention was to make it clear that the land would be used for providing sport facilities which did not necessarily require any building or structure being erected. The said letter .of 13th September, 1987 appears to have been deliberately misquoted and misread by the said Joint Secretary in his letter of 10th December, 1987. The effort of the respondents seems to be to go back on the commitment which had already been made. It was wrong to state in the letter of 10th December, 1987 that the question of the Government allotting the land to the Association did not seem to survive. The Government had made a commitment and the petitioner was entitled to get the possession of the land in question. The respondents were under an obligation to execute all relevant documents in this behalf.

(22) The respondents have filed an affidavit of Shri B. R. Dhiman, Deputy Land & Development Officer dated 8th February, 1991 in which it is, inter alia, stated that the land in dispute is an open green area and that it has now been decided by respondents No. I to hand over the lead to the Municipal Corporation of Delhi to maintain it as a public park/garden in fulfillment of its statutory obligation. It is also stated that the two offers of allotment of land were void ab initio and that the allotment would have been contrary to the lay out plan of defense Colony. It is also stated that the object of petitioner No. 1 does not include the maintenance of green area etc. In our opinion, the averments in the said affidavit are unwarranted. As regards the allegation that the object of petitioner No. 1 does not include maintenance of green area etc., we find that the main object of the Association is to organise and develop social, cultural and recreational activities and surely maintaining a sports complex or an open area where sports are conducted would be covered by the object clause of the Association. We also fail to understand as to how Mr. Dhiman can state that the two offers were void ab initio. Originally when the lay out plan of the colony was approved, the entire 6 acres of land was to be given for officers club. Two parcels of this land have been carved out and given, one for a school and another to a Jain Sabha. In order to overcome that illegality, the respondents are now seeking to deprive the Association of the land which was legitimately theirs as was contemplated by the lay out plan itself. We are at a loss to understand as to how Mr. Dhiman can contend that the allotment of land to the petitioner -Association would be contrary to the lay out plan of defense Colony. On a query by us, Mr..Lokur informs us that the lay out plan as originally pasted was never varied. As per the lay out plan, admittedly, 6 acres of land was meant for the defense Service Officers Club. This being so, the averment of Mr. Dhiman that the allotment would be contrary to the lay out plan of defense Colony is without any basis. It is all the more surprising that Mr. Dhiman should make such an averment when the letter of 22nd .November 1984, whereby the petitioners were informed that if they agree to surrender 0.60 acres to Shri Guru Singh Sabha, the balance area would be given to the petitioners. is written by Mr. Dhiman himself. Curiously enough, in that very letter of 22nd November, 1984 Mr. Dhiman is prepared to allot another area of 0.5 acre to the petitioners for maintenance of a children park provided the petitioner agrees to surrender the said 0.60 acres of land to Shri Guru Singh Sabha. We do not expert officers of the Government of India to take such contradictory stands on oath. there is no doubt in our mind that there is a concerted effort by the respondents not to hand over possession of the land to the petitioners and the respondents on their own, and without any request from the Municipal Corporation of Delhi, have taken, a unilateral decision to transfer the land in question to M.C.D. The respondents are under an obligation to allot the land to the petitioners and hand over possession of the same to them.

(23) We are informed that the cheques for Rs. 9,69,270.00 were returned to the petitioners on 1.8.89 on the ground that they had become time barred. On 17.8.1989 the cheques were revalidated but they were returned on 27.9.1989 on the ground that no decision has been taken to accept the payment. Counsel for the petitioners states that the said amount can be paid whenever directed to do so.

(24) In view of the aforesaid, we allow this writ petition and issue a writ of mandamus directing the respondents to allot the aforesaid plot of 1.576 acres to the petitioners and execute a lease deed in favor of petitioner No. 1 within five weeks from today. The petitioners shall pay to the respondents the sum of Rs. 9,69,728.00 by Bankers Cheque or a 'good for payment' cheque within one week from today. The cheques should be tendered to the Land & Development Officer who is directed to accept the same and encash them. The possession of the land will be handed over to the petitioners by the respondents within two weeks of the execution of the lease deed. This writ is being issued subject to the undertaking given by the petitioners through Mr. K.N. Kataria that the petitioners will abide by all the terms and conditions of allotment given in the respondents' letter dated 7th November, 1979. There will be no order as to costs.