Hemant Plastic Industries & Ors. vs Union Of India & Ors.
1999 Latest Caselaw 602 Del

JUDGMENT

C.K. Mahajan, J.

1. By way of this writ petition the petitioner seeks a mandamus against the respondents to hand over vacant possession of the industrial plot measuring 1042.37 square meters bearing plot No.14/5-D, Block Okhla Industrial Area-II or in the alternative allot a plot of the same area in the vicinity of the said plot. It is also prayed that the respondents be directed to execute a lease deed regarding the aforesaid plot and for payment of interest on the deposit of Rs. 9,90,000/- deposited by the petitioners under the directions of the Court.

2. At the outset the Counsel for the respondent/DDA contends that the writ petition is not maintainable and is barred by the principle of res judicata. It is stated that earlier writ petition involving the plot in question being CW 386/91 filed by the present petitioners was dismissed in default on 10.1.1995 by a Division Bench of this Court. An application was also filed for the restoration of the writ petition (CW 386/91) which was also dismissed on 23rd March, 1998. In the circumstances the learned Counsel for the respondents prays that the petition be dismissed.

3. The learned Counsel for the petitioners has invited the attention of this Court to various orders passed in CW 386 of 1991 and contends that by no stretch of imaginations could this Court have dismissed the said writ petition and that the present petition only seeks enforcement of the orders of the Court dated 19th April, 1993 in CW 386/91 with regard to handing over of the vacant possession of the industrial plot.

4. It is contended by the Counsel for the petitioner that the Court could not have dismissed the petition in default after the same was decided/disposed of in favour of the petitioner. It is necessary to refer to the facts of the case as well as the orders passed by this Court in CW 386/91.

5. The petitioner is a registered partnership firm engaged in the manufacture of polythene tubular films, tubes and bags, plastic goods, PVC compound etc. In response to auction notice and the auction held on 8th August, 1985 the petitioners bid for the plot No.14/5-D, Block Okhla Industrial Area-II measuring 1042.37 sq.mtrs. The petitioners in accordance with the terms and conditions of the auction deposited a sum of Rs. 2,50,000/- being the earnest money. The petitioner made the highest bid for a sum of Rs. 9,90,000/-. The bid was confirmed and the petitioner was asked to deposit the balance amount of Rs. 7,40,011/- within one month from the date of the issue of the confirmation letter. The petitioner made a request for extension of time for deposit of the balance money. The balance money was deposited by 20th January, 1986 and the respondents were accordingly informed and requested for handing over of the possession of the plot. During the personal visits to the office of the respondents the petitioners were intimated that they were required to pay interest on the delayed payment. The petitioners paid the interest on delayed payment and requested for renew of handing over possession of the plot. On 6th February, 1990 the respondents issued a letter to the petitioner stating that the Zonal Engineer had been directed to hand over the plot on 15th February, 1990 at 11.00 a.m. The petitioner was directed to be present at the time of handing over of the possession. The petitioner reached the site to take the possession of the plot on the appointed date and noticed that the plot was occupied by hutments/encroachers. The petitioners were asked to sign the possession slip which they refused to do and made a request for handing over vacant possession. Till the date of the filing of the writ petition the petitioners were not given vacant possession of the said plot despite deposit of the entire amount alongwith interest that was due and payable by the petitioner in response to the action notice.

6. It is clear from the aforesaid facts that the payment of the full price of the plot was admitted by the respondent/DDA. DDA further admitted that the plot was encroached upon and that they would hand over vacant possession after removal of the encroachments. In reply to the show cause notice the petitioners claim was accepted by the DDA and it was stated that the vacant possession would be handed over to the petitioner after the removal of the Juggies/encroachments. Several orders were passed by this Court during the pendency of the writ petition. It was noted in the order dated 23rd October, 1991 by the Counsel for the DDA that because of an interim stay by the Supreme Court the encroachments could not be removed. It was suggested by the Counsel for the petitioner that till such time the respondents are in a position to deliver possession of the plot to the petitioners the money deposited with the respondents may be invested by the respondents in short term deposits. The Counsel for the respondents took time for taking directions and this Court on 15th November, 1991 directed the respondent/DDA to deposit the sum of Rs. 9,90,000/- deposited by the petitioner in a nationalised Bank. In the event of the matter not being resolved within three months the amount would be reinvested for another period of three months. The petitioners in the meanwhile were offered an alternative plot of larger size. The money was deposited in the fixed deposit. It appears that some talks for settlement were going on but eventually an interim order was passed restraining the respondents from auctioning the plot in question till further orders of this Court. It appears that the learned Counsel for the respondent/DDA was unable to take instructions in the matter of settlement for allotment of alternative plot. However, it is recorded in the order dated 21.1.1992 that the respondents had decided to allot alternative plot to the petitioner and a fresh letter of demand would follow. The petitioners were directed to keep in touch with the DDA and after procuring allotment cum demand letter the petitioners would inform the Court. The DDA did not take any action and failed to issue another allotment letter for the alternative plot. It is recorded in the order dated 23rd April, 1993 that a bigger plot was offered to the peti- tioner on payment of Rs.14 lakhs. The petitioners did not pay the ount. The interim order passed on 12th December, 1991 reserving a plot in favour of the petitioner was vacated. It is recorded in the order dated 27th October, 1991 that the respondents were taking steps for handing over vacant possession of the plot to the petitioner. The encroachments had not been removed and further time was sought of that purpose. It is recorded in the order dated 19th April, 1993 that the respondent/DDA offered a plot No. F-27/1, measuring 585 sq.mtrs to the petitioner in lieu of the plot purchased by the petitioner in the auction. Since the petitioner was indecisive in the matter the Court did not see any ground to interfere.

7. In the circumstances, the respondent/DDA was directed to remove the encroachers who were in occupation of the plot as early as possible and hand over vacant peaceful possession to the petitioners. On these terms the writ petition was disposed of on 19.4.1993. After this order was passed Counsel for the respondent/DDA entered appearance and submitted that he would seek instructions as to whether vacant and peaceful possession of the plot could be given to the petitioner within a specified time. Counsel for the petitioner agreed to forgo his interest if possession of the plot was given before the next date of hearing.

8. Thereafter the respondents took time for apprising the Court the steps taken for handing over vacant possession to the petitioner. A proposal was made by the respondent/DDA to construct a boundary wall which was found acceptable to the petitioner. The respondent DDA was to furnish her estimate and the petitioner was required to deposit the sum. The estimate was given to the petitioners who had taken time for seeking instructions. Thereafter on 10th January, 1995 the petition was dismissed on account of non appearance of the petitioner. Thereafter an application was also filed for restoration of the writ petition. The said application was also dismissed.

9. I have heard the Counsel for the parties and have examined the matter at length.

10. The order passed on the 19th April, 1993 finally disposed of the writ petition in the following terms:

"Since the petitioner is indecisive in the matter we see no ground to interfere in this petition. The Delhi Development Authority will evict the persons occupying the said plot as early as possible and hand over vacant and peaceful possession of the plot to the petitioner thereafter. The petitioner has already paid the full purchase price which we are informed has been deposited in Fixed Deposit in a nationalised Bank as directed by us. Thus, the respondent is earning interest on the amount. Needless to say that the petitioner will be entitled to get same interest on the purchase price paid from the date of deposit made by him till the respondent gives vacant and peaceful possession of the plot to the petitioner.

The writ petition is disposed of in the above terms. Let a copy of this order be given Dasti for 23rd April, 1993 to the learned Counsel for the parties."

After the order was dictated the Counsel for the respondent sought time for taking instructions as to whether vacant and peaceful possession of the plot purchased by the petitioner could be given to him within a specified time. The petitioner stated that they would forgo interest if possession was given by the next date. The case was in fact adjourned only for directions.

11. It has to be seen as to what is the effect of the order passed on 19th April, 1993. The petitioner's right to the plot was finally determined by the Court on 19th April, 1993 when the writ petition was disposed of on the terms that the DDA would evict the encroachers and hand over vacant peaceful possession to the petitioner. Thereafter the proceedings were confined only to the handing over of the possession and ancillary matters. It appears that the order dated 19th April, 1993 was not brought to the notice of the Court at the time of dismissal of the petition. Besides the petitioners have paid full consideration for the plot and the same acknowledged by the respondents. The DDA admitted that the petitioner was entitled to vacant possession of the plot. The DDA was also prepared to remove the unauthorised occupants and construct the boundary wall on payment to be made by the petitioners. The right of the petitioners cannot be defeated merely on technicalities.

12. In the circumstances the respondent DDA are bound to hand over possession of the said plot to the petitioners and dismissal of the petition does not in any way take away the right of the petitioners to possession of the plot. The prayer in the present petition is only enforcement of the order dated 19th April, 1993 disposing of the petition with direction to the respondent to hand over vacant possession.

13. It is strange that the DDA should now choose to oppose this writ petition after having admitted the right of the petitioner for vacant possession of the plot. Throughout the proceedings the respondent DDA prayed for time for handing over vacant peaceful possession of the plot to the petitioners. After having accepted the bid money in full and retaining the said amount and after acknowledging the entitlement of the petitioner to vacant possession of the said plot, it does not lie in their mouth to raise such technical objections in the present petition. This is a gross case of injustice. It has been the consistent stand of the DDA in their affidavit filed in opposition to the writ petition that the petitioners are entitled to vacant possession of the plot.

14. The writ petition is thus maintainable and the petitioner is entitled to the relief prayed for.

Rule.

15. Keeping in view the fact that the prayer in the present petition is only implementation of the order dated 19th April, 1993, I direct the respondents to take steps for handing over of vacant and peaceful possession of the plot to the petitioner within a period of three months from the date of this order and thereafter execute the lease deed on the completion of usual formalities by the petitioner.

16. The writ petition stands disposed of.