Jallo Subsidiary Industries Co. ... vs Delhi Development Authroity
1993 Latest Caselaw 17 Del

JUDGMENT

P.N. Nag, J.

(1) The short question for determination in this writ petition is whether the petitioner is entitled to the sanctioning of the building plan and commencement of construction on payment of usual penalty in view of the Notification issued by the Delhi Development Authority, published on 26th March, 1982 (Annexure- P.IA).

(2) The brief relevant facts leading to the filing of the present petition are that the petitioner was granted a perpetual lease vide lease deed dated 18th November, 1970 by the President of India of a plot of land being the Industrial plot No.91, Block NO.A, measuring 2420 sq.yards in the lay-out plan of Okhla Industrial Area, Phase-11, New Delhi, which was registered on 9th December, 1970. As per clause 4(a) of the lease, the period for construction of the plot was two years from 3rd March, 1970. However, the period later on was admittedly extended up to 31st December, 1981 vide letter dated 21st September, 1981, Annexure-P.1. However, it appears that the building was not completed by the petitioner, as according to him it was not humanly possible to construct this building up to 31st December, 1981. He applied for extension of period for completing the construction vide letter dated 3rd April, 1982, Annexure-P.II. This application, appears to have been nude in view of the Notification issued by the Delhi Development Authority on 26th March, 1982. The construction of the plot could not be completed within the stipulated period and the Delhi Development Authority on 15th November, 1984,vide the impugned order Annexure-P.VI determined the lease and conveyed the termination of the lease to the petitioner and the petitioner was asked to handover the possession of the plot in question. It was further stated therein that in case he failed to hand over the possession of the plot, the possession of the plot will be treated as resumed.

(3) Again the order of cancellation of the lease, the petitioner made representation dated 19th November, 1984 for restoration of the lease and the Delhi Development Authority wrote to the petitioner that. his request for restoration of lease in .respect of the plot in question can be acceded to subject to the payment of the following dues:- 1. Composition fee for belated construction up to 31.12.85...................Rs. 65,579.00 2. Restoration charges.......Rs. 20,240.00 3. Interest charges on belated payment of premium.........Rs. 1,714.00 Total:- Rs. 94,533.00

(4) It appears that the petitioner. deposited an amount of Rs.47,266.50 with the Delhi Development Authority, as according to him he was only liable to pay the aforesaid amount in view of the Notification dated 26th March, 1982 and this amount is on account of usual composition charges. However, the Delhi Development Authority seriously disputed the amount which the petitioner was required to deposit. Thereafter, the petitioner thereafter deposited the balance amount to make up the deficiency i.e. Rs.94,533.00 , as demanded by the Delhi Development Authority vide letter dated 19th April, 1985, Annexure-P.VII, which was accepted by the Delhi Development Authority.

(5) However, during the pendency of the petition, it transpired that on 8th September, 1989, Mr.A.S.Chandhiok, learned counsel for the petitioner submitted before the Court that in order to avoid further litigation, the petitioner was prepared to pay even interest on the delayed payment of Rs.94,533.00 , as referred to in the letter dated 19th April, 1985, Annexure-P.VII. Inspite of the compliance by the petitioner to the terms of the letter dated 9th April, 1985, Annexure-P.VII, lease was not restored by the Delhi Development Authority. Therefore, the petitioner has sought for the quashing of the impugned order of cancellation of the lease dated 15th November, 1984, Annexure-P.VI.

(6) The stand of the respondent in substance is that the application of the petitioner is not covered by Notification dated 26th March, 1982. According to the respondent, the Notification is applied only in cases where the construction had already started. Secondly, the petitioner is entitled to get its plan sanctioned and also to commencement of the construction on payment of usual penalty as provided in the Notification. But that sanction has already been given by the Delhi Development Authority vide letter dated 10th November, 1981. Under clause 4 thereof the erection of the building or execution of the work shall be commenced within one year of the date of this sanction and completion not later than two years from the date of sanction. However, the validity of building plans will remain for two years. In other words, the petitioner was required to commence the construction up to 9th November, 1981 and complete it up to 9th November, 1983. Therefore, whatever the petitioner was entitled to in view of the Notification, that stood already granted to him by this letter.

(7) There is no dispute that during the pendency of the writ petition, the petitioner has already deposited an amount of Rs.94,533.00 as was required to be deposited vide letter dated 19th April, 1985.

(8) It further transpired that during the course of the proceedings of the court that the order dated 8th September, 1989, was passed, according to which the petitioner was also prepared to pay interest on the delayed payment of Rs.94,533.00 and the Court also observed that the Delhi Development Authority might consider the request of the petitioner for restoration of the lease.

(9) In my opinion, when whatever the amount as asked for by the Delhi development Authority from the petitioner was deposited by him and he was even prepared to pay the interest on the delayed payment, there should not have been any objection on the part of the Delhi Development Authority to restore and regularise the lease of the petitioner, once they themselves have agreed for restoration of lease on certain payment, as referred to earlier. It goes without saying, in accordance with mandate of Article 14 of the Constitution the statutory authority cannot afford to act arbitrarily.

(10) Learned counsel for the petitioner conceded that the petitioner is ready to pay interest at the rate of 12% p.a. on the amount of Rs.47,266.50 up to 9th April, 1988 and on the balance amount the interest would be paid from 20th May, 1985 to 9th September, 1987. In any case, if there is any dispute about the calculation of interest on the delayed payment, that can be settled by the parties.

(11) In these circustances, the impugned order of cancellation of lease cannot be sustained and the Delhi Development Authority is directed to restore the lease forthwith to the petitioner, subject of course on the payment of interest on the .delayed payment within two weeks from today, as the petitioner has undertaken to pay.

(12) The submission of learned counsel for the respondent that the case of the petitioner is not covered by the Notification as no construction was carried out on the plot in question except the work of excavation to the average depth of 6 to 8 ft. and, therefore, Delhi Development Authority has every right to determine the lease, must also fail as, in my opinion, the work of excavation which has been carried out on the plot in question is a part of the construction as. the work of excavation is directly related to the foundation and construction of the basement.

(13) The next submission of Ms.Salwan, learned counsel for the respondent is that though the petitioner applied for revalidation of the sanctioning of the plan and for the extension of the time for commencement of the construction on 3rd April,. 1982 within the period stipulated in the Notification dated 26th March, 1982, but that sanction was already given to the petitioner vide letter dated 10th November, 1981, Annexure-PV, and under clause 4 thereof it was provided that erection of the building or execution of work shall be commenced within one year of the date of this sanction and completion not later than two years from the date of sanction. In this connection it may be reiterated that the lease of the petitioner had already been terminated and it is obvious that without a valid lease the petitioner cannot raise any construction on the plot in question. Therefore, the sanction granted by the Delhi Development Authority vide letter dated 10th November, 1981, Annexure-PV, under clause 4 thereof has become meaningless and redundent. Therefore, this letter is of no assistance to the respondent and this contention also must fail.

(14) Since the lease is required to be restored to the petitioner, in view of what has already been stated above and consequently the period as contemplated under clause 4(a) has p73 necessarily to be extended and the petitioner would be entitled to extension of time for the sanction of the building plan and for commencement of the construction in view of Notification dated 26th March, 1982, on payment of usual penalty.

(15) MR.CHANDIOK submits that be is liable to the payment of lesser amount in view of the Notification dated 24th March, 1982, than what is demanded from him by the Delhi Development Authority vide Annexure-P.VI. Ms.Salwan, learned counsel for the respondent, however, contests this submission and contends that it is a disputed question of fact which cannot be gone into in this writ petition. In this connection, it may be pointed out.that the petitioner has already agreed to make certain payment before the Court and normally it is not permissible to raise this point. However, I keep this question open, and the petitioner shall be at liberty to move the appropriate forum for such remedy.

(16) In the light of what has been discussed above, the impugned order of cancellation of the lease of the petitioner (Annexure-P.VI) is quashed and the Dehi Development Authority is directed to restore the lease forthwith on payment of interest at the rate of 12% pa. on the delayed payment, as discussed above and is further directed to revalidate the sanctioning of the plan and extend the period thereof, as contemplated vide letter dated 10th November, 1981 under clause 4 thereof in view of notification dated 26th March, 1982. There will be no order as to costs.