Sameer Gehlauat vs Municipal Corporation Of Delhi ...
1999 Latest Caselaw 254 Del

JUDGMENT

K. Ramamoorthy, J.

1. On 11.11.1998 the second respondent put up for auction the retail outlet at Rangpuri, NH-8, Delhi Gurgaon Road, New Delhi. The petitioner was the highest bidder and the same was accepted. The petitioner deposited a sum of Rs. 34 lakhs as per the terms and conditions. He was to further deposit a sum of Rs. 3 crores. On 30.11.1998 the petitioner filed the writ petition praying for the following reliefs:

"(a) issue a writ, order or direction in the nature of a writ of mandamus thereby directing the respondent No. 1, MCD to sanction/approve the building plans submitted by respondent No. 2 in respect of the retail out let at Rangpuri, NH-8, Delhi-Gurgaon Road, New Delhi allotted to the petitioner;

(b) issue a writ, order or direction in the nature of a writ of mandamus thereby directing the respondent No. 2 to construct the building/ structure at the retail out let at Rangpuri, NH-8, Delhi-Gurgaon Road, New Delhi of allotment and also as per letter dated 17.11.98;

(c) issue a writ, order or direction in the nature of a writ of certiorari thereby quashing the letter dated 27.11.98 written by respondent No. 2 to the petitioner whereby the respondent No. 2 has declined the extension of time to the petitioner;

 (d)    issue a writ, order or direction in the nature of a writ of mandamus thereby directing the respondent No. 2 not to demand the balance amount till the building/structure is constructed by respondent No.
2."  
 

 On 1.12.1998 this Court passed the following order:  
   

 "C.W. No. 6290/98  
 

 Issue notice to respondents to show cause as to why the writ petition, be not admitted, returnable on 19.3.1999.  
 

 Ms. Dina Bawa accepts notice for respondent No. 1. Respondent No. 2 will be served Dasti by the petitioner. 
 

The learned Counsel for the petitioner states that a sum of Rs. 3 crores being demanded by the respondent No. 2 shall be put in a fixed deposit by him in his own name and the receipt will be produced by him on the next date of hearing to demonstrate the bona fides of the petitioner and his readiness and willingness to pay the impugned amount.

CM. No. 11623/98

Notice, returnable on 19.3.1999.

Ms. Dina Bawa accepts notice for respondent No. 1. Respondent No. 2 will be served Dasti by the petitioner.

Respondent No. 2 is hereby restrained from demanding the balance amount of Rs. 3 crores from the petitioner until the next date of hearing.

Liberty is given to respondent No. 2 to seek modification of this order by giving advance notice to the petitioner.

Dasti."

The petitioner as per the directions issued by this Court on 1.12.1998 put Rs. 3 crores in fixed deposit. The matter again came up before this Court on 15.12.1998. This Court passed the following order on the representation that the parties had come to a settlement:

"It is stated by the learned Counsel for the parties that they have arrived at a settlement and therefore it is not necessary to go into the question raised by the learned Counsel for the respondent as I consider that the petitioner is bound ' by the terms of the auction notice. Accordingly, it is directed that in case the petitioner deposits the balance bid price within seven days from today, the respondent shall within a month and a half or even earlier if possible make the petrol pump available with temporary shed. It is also directed that the petrol pump completed in all respects alongwith the installations and requisite building with facilities as per agreement shall be handed over to the petitioner within six months from today failing which respondent No. 2 shall return the entire bid amount alongwith interest at the rate of 12% per annum. In case the petitioner does not deposit the balance amount within seven days, the advance money of Rs. 34 lakhs shall be forfeited.

Learned Counsel for the respondent No. 2 also states that they have applied for sanction of the building plan to the MCD and they are expecting approval from the MCD. Since the premises involved is of public utility service it is expected that Municipal Corporation of Delhi will dispose of the application for sanction of plan expeditiously and preferably within two months.

Accordingly, the CMs and writ petition is disposed of."

2. It is not in dispute that the petitioner had paid Rs. 3 crores within seven days from the date of the order i.e. 15.12.1998. In view of the fact that the petitioner had complied with the order passed by this Court it was for the second respondent to make arrangements for completing the installation and requisite building with facilities as per the agreement as pointed out by this Court in its order dated 15.12.1998. The second respondent has filed C.M.169/99 claiming the following reliefs:

  "(i)    to pass appropriate direction in terms of the contents of paras 2, 3 and 4 above." 
 

 In paragraph 2 of the petition, it is stated: 

"That this Hon'ble Court has by the said order directed that the respondent No. 2 would construct a building along with installations and facilities as per agreement within a period of six months. However it was submitted by the Counsel for respondent No. 2 that the construction of the building etc. would be subject to plans being sanctioned by MCD and within a period of none months from the order. It is submitted that the order passed by this Hon'ble Court however records six months time for construction, probably by an oversight in view of the said time period contained in the order passed by Mr. Justice Anil Dev Singh in Civil Writ Petition No. 6349 of 1998. It may be mentioned that the respondent No. 2 had applied for sanction of plans on 26th June, 1996 and clarifications requested by MCD were provided by the respondent No. 2 vide letter dated 20th August, 1996. It may also be mentioned as per Bye-law 6.7.4 of the Delhi Building Bye-laws, 1983 under the MCD Act, on the failure of MCD to refuse sanction or to give any intimation within a period 60 days of an application, the sanction is deemed to be granted."

In paragraph 3 referring to the terms and conditions of the auction, it is submitted:

"That the respondent No. 2 further submits that in so far as the direction for refund of money is concerned, in the event of the respondent No. 2 failing to construct the building within nine months of the order (as may be directed instead of six months), the applicant seeks the undermentioned directions in view of the following submission:

It is respondent No. 2's submission that it was under no obligation under the auction terms or under the proposed agreement to be signed, to construct any building at the site and that the temporary port cabin already existing at the site is sufficient for the purposes of the retail outlet. These submissions are contained in detail in the counter affidavit filed by the respondent No. 2 as well as the application for vacating the ex-parte ad-interim stay order dated 1st December, 1998. It is submitted, therefore, that in the event of the MCD refusing the sanction of the plans, the writ petition would have to be decided on merits and the respondent No. 2 would have to be permitted to retain the amount of Rs. 3,34,00,000/- (Rupees three crores and thirty four lacs only) deposited by the petitioner until disposal of the petition as otherwise the respondent No. 2 is obligated to deposit the proceeds of the auction with the Prime Minister's Relief Fund vide order dated 29th August, 1997 read with order dated 11th September, 1998 passed in Writ Petition No. 4003 of 1995. It is submitted that once such a deposit is made with the Prime Minister's Relief Fund it would not be possible for the respondent No. 2 to recover the same and respondent No. 2 would be put to irreparable loss and injury. It is further submitted that in the event of the plans being sanctioned by the MC within the time period stipulated by this Hon'ble Court in the order dated 15th December, 1998 or any extended period granted by the Court or that this Hon'ble Court directs that the plans are deemed to be sanctioned in accordance with Bye-law 6.76.4 of the Building Bye-laws, then the respondent No. 2 would construct the building as per the sanctioned plans within the overall time of nine months or any extended period, if any, from the date of the order."

3. According to the second respondent as per the terms and conditions the respondent is under no obligation to put up any building. The petitioner had already put in possession of the out let and he is carrying on business. On the above ground, the second respondent sought modification of the order dated 15.12.1998 to the effect that the order dated 15.12.1998 ought not to have been passed on a compromise or settlement between the parties but in view of the judgment dated 10.12.1998 passed by His Lordship Mr. Anil Dev Singh in C.W. 6543/98 the second respondent had not come to any compromise with the petitioner.

4. The learned Senior Counsel for the second respondent Dr. A.M. Singhvi submitted that the second respondent had clearly stated its terms and conditions and the petitioner was bound to act in accordance with the terms and conditions. According to the learned Senior Counsel two things can be considered for sorting out the matter. First is that in view of the stand taken by the Municipal Corporation of Delhi the second respondent would leave right of way to the extent of 90 MTs and the second respondent would give an undertaking to make necessary arrangements for getting sanction from the Municipal Corporation of Delhi. According to the learned Senior Counsel Dr. Singhvi, the second respondent is under no obligation to put up any building with a view to render assistance to the petitioner. The second respondent would take necessary arrangements to move the authorities concerned for sanctioning of the plan and to complete the construction within the period mentioned in the order by this Court on 15.12.1998. According to the learned Senior Counsel the petitioner cannot resile from his commitment in the auction and once he has been put in possession retail outlet, the second respondent had fulfillled its terms of the terms and conditions of the auction. The learned Senior Counsel referred to letter dated 9.1.1997 from the DDA to the second respondent and the same is as under :

"Sub: Sanction of the building plan for construction of petrol pump, out let at NH-8, Mahipalpur, Opp. Village Rangpuri, New Delhi.

Please refer to your letter dated 30.12.96 on the above subject. As per our record the petrol pump, out let site at NH-8, Mahipalpur, Opp. Village Rangpuri, is beyond the boundaries of Development Area No. 176 and as DDA has no jurisdiction to approve the building plans of the said out let/site in question. Hence you are advised to submit the plans to the concerned department of MGD/IAAT."

The learned Senior Counsel Dr. Singhvi submitted that the DDA had only stated that the out let is beyond the boundaries of development area and the second respondent would move the appropriate authority for the same.

5. The Municipal Corporation of Delhi filed its affidavit on 16.2.1999, inter-alia, it has stated that in the Master Plan this place is not ear marked for any outlet and unless the land use is permitted by the authorities concerned no building activity can be carried out The learned Counsel for the Municipal Corporation of Delhi Ms. Madhu Tewatia submitted that it is only the Government of India that can permit the change of land use and it is for the second respondent to apply for the change of land use and then apply for sanction of the building in accordance with the building bye-laws. The learned Senior Counsel Dr. Singhvi submitted that from 1996 out let is operating in that place and Municipal Corporation of Delhi had not objected to it and no other authority also had objected to the same. Therefore, there can be no objection on behalf of the Municipal Corporation of Delhi that the second respondent had used the site for retail out let.

6. Mr. Ravinder Sethi, the learned Senior Counsel for the petitioner submitted that the petitioner was eager to carry on the business and, therefore, had complied with the terms of the auction and had paid Rs. 3.34 crores to the second respondent. On 15.12.1998 when the matter came up before this Court the petitioner expressed his readiness to deposit the amount and the petitioner complied with the terms issued by this Court as per the terms and conditions of auction. In view of the latest development in the technical providing oil to the customers, the second respondent is bound to put up necessary building and that is why in the terms and conditions provision has been made. The stand of the second respondent that it is under no obligation to put up a building as per the terms and conditions of the auction.

7. The learned Senior Counsel for the petitioner Mr. Ravinder Sethi submitted that whatever be the position the second respondent had agreed before this Court on the basis of which an order was passed that it would complete construction of the necessary building within six months from 15.12.1998. The second respondent for putting up a construction, it cannot be disputed, has to get sanction from the Municipal Corporation of Delhi. The position as on date is that unless there is an order by the Central Government for the change of land use the second respondent cannot apply for sanction of the building and the Municipal Corporation of Delhi cannot also grant the sanction. Therefore, the second respondent without ascertaining the position of the site from the master plan had put up the site for auction. The second respondent ought to have obtained appropriate orders from the Central Government for the change of land use before putting the site for auction.

8. Regarding the right of way, as suggested by the learned Senior Counsel Dr. Singhvi, it was submitted by Mr. Ravinder Sethi, the learned Counsel for the petitioner, if that is accepted then there will be complete change of the size and location of the plot and it will be running counter to the schedule given by the second respondent in the auction notice. The schedule mentions showing the site for auction, it is stated :

"The First Schedule referred to plot of land admeasuring 150' x 120' on NH-8, Delhi Gurgaon Road, Rangpuri, New Delhi bounded as follows:

 North West: Open land North East     :   Temple & open land  
 

 South West: Open land South East      :   NH-8, Delhi Gurgaon Road  
 

 The Second schedule above referred to  
  Pumps  Tanks
3-MS : LOT Z Line/Avery                          1x22 KL W/G
1x16 KL W/G
3-USD: MIDCO/Avery 2x22 KL W/G  
 

 The Third Schedule above referred to  
 

 -- AIR Guage & Compressor  
 

 -- Pollution Checking machine"   
 

9. The petitioner offered the money only for the plot as stated in the schedule and if there is any change in the size of the plot, the second respondent is offering something different plot mentioned in the auction notice and the petitioner is not bound to accept the same.

10. What emerges from the above discussion is that it is necessary for the second respondent to obtain appropriate orders from the Central Government for change of land use and unless the Central Government agrees for the change in the land use no retail out let could be located at the site. What was done from 1996 was contrary to this and that cannot be permitted. The second respondent had rendered itself impossible to perform its obligations under the terms and conditions as agreed to by it before this Court on 15.12.1998. The order passed by this Court was on the basis of settlement arrived at between the parties it is not open to the second respondent to try to get over the compliance of the order on some pretext or the other. As on date, there is no order by the Central Government permitting the change of land use. The sine qua non for the auction by the second respondent is the order of change of land use by the Central Government. Under these circumstances, the second respondent is to act in accordance with the order passed by this Court on 15.12.1998. The reasons given by the second respondent in C.M. 169/99 for modification in the order dated 15.12.1998 are not at all acceptable in law.

11. The learned Senior Counsel for the petitioner Mr. Ravinder Sethi submitted that the petitioner is willing to surrender possession of the retail out let to the second respondent on the second respondent paying the entire amount i.e. Rs. 3.34 crores to the petitioner and if the petitioner having deposited a very large sum of amount cannot afford to wait for the resolution of the dispute between the second respondent and the Municipal Corporation of Delhi.

12. Under these circumstances, I direct the second respondent to pay the petitioner the sum of Rs. 3.34 crores on or before 30.4.1999 and on the second respondent paying the amount, the petitioner shall surrender possession of the out let to the second respondent.

13. I do not find any reason to modify the order dated 15.12.1998. C.M. 169/99 stands, dismissed. There shall be no order as to costs.