Rameshwar Dayal vs Delhi Development Authority
2000 Latest Caselaw 311 Del

ORDER

Dr. M.K. Sharma, J.

1. The present writ petition has been preferred by te petitioner seeking for issuance of a direction to the respondent to hand over possession of plot bearing No.142, Block-C, Okhla Industrial Area, Phase I, New Delhi, or an alternative plot of land of the same size in Okhla Industrial Area, phase I, New Delhi, to the petitioner and to execute the necessary conveyance/perpetual lease deed in terms of the allotment made by the respondent to the petitioner.

2. The petitioner is a manufacturer of Wooden Cabinets which are being used for sewing machines and Television sets, carrying on his business from the premises bearing municipal No.525/16 and premises bearing municipal No.508 situated at Chhota Bazar, Shahdara, Delhi. The aforesaid area from which the petitioner was carrying on his business was found to be a non-conforming area and accordingly in terms of the scheme of the respondent/DDA, the petitioner applied for allotment of an alternative industrial plot. The said application was filed some time in the year 1970 and a copy thereof has ben placed on record as 'Annexure-D'. The aforesaid application filed by the petitioner was processed by the respondent and the said application was forwarded to the Officer on Special Duty (Lands), Directorate of Industries.

3. A letter was issued to the petitioner on 16.11.1971 by the respondent intimating the petitioner the decision of the respondent to allot to the petitioner a plot No.142, Block-C in Okhla Industrial Area, Phase I, Delhi, measuring 4840 sq.yards on perpetual lease hold basis for shifting his industry/warehouse from the non-conforming location. It was mentioned in the said letter that the allotment would be on the specific conditions that the petitioner would within two months from the date of possession of the plot, stop use of the present premises for the purpose of warehouse and for any manufacturing process or running of any industry whatsoever. By the aforesaid letter the petitioner was asked to deposit the amount as mentioned therein. The petitioner, however, did not deposit the amount in terms of the letter and accordingly by letter dated 5.8.1972 the Delhi Development Authority informed the petitioner about cancellation of the allotment of the plot made in favour of the petitioner for non-payment of the amount in terms of the demand.

4. Being aggrieved by the said order, the petitioner submitted a representation to the Delhi Development Authority. The aforesaid cancellation of the allotment of the plot was, however, recalled by the respondent and the allotment of the plot was restored by the respondent in favour of the petitioner which was intimated to the petitioner by the respondent under their letter dated 14.3.1975. The petitioner deposited the balance amount of sale consideration and since inspite of the deposit of the aforesaid amount, no lease deed was executed in favour of the petitioner and possession of the plot was not handed over to the petitioner, the present petition was filed seeking for the aforesaid reliefs.

5. The Delhi Development Authority contested the writ petition by filing a counter affidavit wherein several contentions have been raised on its behalf. It is stated that under the Master Plan, now in force, the petitioner is entitled to continue and carry on his business from the present premises and, therefore, he is not entitled to allotment of an alternative plot. It was also stated that there was change in the layout plan due to which the said plot No.142, Block-C, Okhla Industrial Area, phase-I, New Delhi, ceased to exist. It was also stated that the petitioner did not make payment of the amount as demanded by the respondent for which the allotment made in favour of the petitioner was cancelled and the subsequent restoration of the allotment was illegal and was under a bona fide mistake as the same was done under the verbal orders of L.S.O. (I & D) thinking that payment of Rs.67/340/- was 50% of the price although in fact 50% of the price was not deposited by the petitioner which was a criteria for restoration of the allotment.

6. Counsel for the petitioner vehemently submitted that none of the aforesaid grounds as raised by the Delhi Development Authority in its counter affidavit could be held to be legal and justified grounds for denying possession of the plot as the right of the parties are to be judged on the date of institution of the present writ proceeding and, therefore, subsequent change in the Master plan allowing the petitioner to carry on his business from his present premises would not have any material, bearing on the facts of the present case and cannot and would not alter the status, validity and position of allotment made to the petitioner by the respondent. In support of the aforesaid contention, learned counsel for the petitioner relied upon the decision of the Supreme Court in Rameshwar and others Vs. Jot Ram and others; . It was also submitted that even if there by any change in the layout plan due to which the aforesaid plot had ceased to exist, the respondent could give an alternative plot of land to the petitioner. In support of the aforesaid contention, the learned counsel also relied upon the averments made by the Delhi Development Authority in its counter affidavit filed in the month of July, 1994 wherein, it was stated by the respondent that the deponent was considering the scope of another plot to be allotted to the petitioner, when the C.B.I., seized the main file. Relying on the said statement, it was submitted by the counsel for the petitioner that the Delhi Development Authority has been allotting alternative plots as and when there was a change in the layout plan and when there was a change in the layout plan and pursuant to such a policy of the respondent being followed, in the present case also the respondent was considering allotment of another plot of land to the petitioner and, therefore, the aforesaid contention has no relevance at all. Counsel also submitted that once the cancellation of the plot has been restored in favour of the petitioner and the said restoration having not been withdrawn by the respondent, in accordance with law, till the filing of the writ petition, no such ground could be raised at this distant date that is, after expiry of about 25 years to the effect that the said restoration was ordered under a mistaken belief. Counsel further submitted that the Delhi Development Authority could not have cancelled the allotment which was restored on the ground of making short payment of the fixed sale price for an opportunity was to be given to the petitioner to make payment of the shortfall, if any, charging interest on the said amount which is done in other similar cases. In support of his contention, the learned counsel relied upon the decision of this Court in Reliable Laboratories (P) Ltd. & Anr. Vs. Delhi Development Authority and Anr.: and Promilla Sharma Vs. Delhi Development Authority & Anr.: .

7. Counsel for the respondent, however, submitted that once the Master Plan is changed and the area from which the petitioner has been operating has been declared as a mixed Zone, the petitioner is not entitled to be allotted with an alternative plot of land. He also submitted that it is for the Delhi Development Authority to decide which areas are conforming and non-conforming areas. It was submitted that, if a particular area was declared to be a non-conforming area at one stage and the said declaration is modified making the area a conforming area, question of allotment of alternative plot of land to the petitioner could not be re-considered and that the proposed transaction could also be called of. It is also submitted that the very basis of adopting a scheme for allotment of an alternative plot of land being to facilitate and extend benefit to the people who are required to be moved out from the place wherefrom they have been operating and the purpose of the said scheme being to rehabilitate such persons at concessional rate and not at market rate, the very need and the purpose has been frustrated and rendered negatory in view of the adoption of revised Master plan and thus the petition is mis-conceived. He further submitted that the allotment given to the petitioner was cancelled in 1972 and the restoration thereof ordered in 1975 was a mistake for the petitioner did not pay 50% of the price which was an essential condition and requirement for restoration of the allotment which was cancelled. According to him the petitioner did not satisfy the aforesaid essential condition and requirement and, therefore, no such restoration could have been ordered in favour of the petitioner on the verbal order of an officer of the Delhi Development Authority. He also submitted that since the plot in question which was allotted to the petitioner is not available for allotment in terms of the revised Master plan, the order of allotment also cannot be given effect to and, therefore, the writ petition itself is liable to be dismissed as infructuous.

8. In the light of the aforesaid submissions of the learned counsel for the parties. I have perused the records and proceed to decide this matter as hereunder.

9. In order to decide the writ petition, three aspects need scrutiny which are specifically taken by the respondent in its counter affidavit. The first of the three aspects is the issue of non-availability of the plot in vew of change in the layout plan whereas the other two issues being the issue of the legality of the order of restoration of the allotment which was cancelled and issue of frustration of the need and purpose for allotment of land in view of change in the Master Plan.

Change in the layout plan:

10. The respondent/Delhi Development Authority has categorically stated in its counter affidavit that due to change in the layout plan of the area concerned, the plot allotted to the petitioner is no longer in existence and, therefore, as the plot allotted to the petitioner has ceased to exist, the relief sought for in the writ petition has become infructuous. In the counter affidavit filed before this Court, it was stated by the respondent that the deponent was considering the scope fo allotment of another plot to the petitioner when the C.B.I. seized the main file.

11. The aforesaid pleading makes it crystal clear that although the plot in question cases to exist in the revised layout plan, the respondent could consider and allot an alternative plot of land to the petitioner for which there is no legal impediment. It is not stated on behalf of the respondent that such alternative plot was and has not been allotted to any person whenever and where ever there is change in the layout plan. If at one stage the petitioner was found entitled to be allotted with a plot of land pursuant to which allotment is also made, he cannot be divested of the said right merely because certain changes have been made in the layout plan, consequent to which, the plot has ceased to exist. In that event, he should be allotted another plot of land of equal size. The petitioner, therefore, could be allotted an alternative plot although the plot allotted to him has ceased to exist. The aforesaid objection taken by the respondent, there fore, has no merit and is rejected.

Whether restoration of allotment which was cancelled was illegal:

12. The order of allotment of the alternative plot of land to the petitioner was cancelled by the Delhi Development Authority for non-payment of the instalments as demanded by the respondent. The said information was sent to the petitioner by letter of the respondent dated 5.8.1972. As against the aforesaid cancellation a representation was filed by the petitioner which was considered and the respondent by letter dated 14.3.1975 informed the petitioner that the allotment of the plot has been restored & the petitioner was also allowed to deposit the balance amount which was accordingly deposited & accepted in the year 1975.

13. A plea has been taken by the respondent that the said restoration was ordered pursuant to verbal orders of L.S.O. (I & D) under the mistaken belief that payment made by the petitioner of an amount of Rs.67,340/- was 50% of the price, although in fact 50% of the price was not paid by the petitioner and was, therefore, not entitled to get the benefit.

14. The aforesaid restoration of the allotment was done in the month of March, 1975 and thereafter, the entire sale price of the plot had been paid and received by the respondent and the restoration was given effect to by considering the application filed by the petitioner against the rates charged. Even in the counter affidavit, it is stated that the respondent was even considering allotment of some other land in lieu of the allotted land to the petitioner in view of the fact that the said plot ceased to exist under the revised layout plan.

15. The allotment having been restored in the month of March, 1975 and thereafter, no order having been passed till the filing or the writ petition withdrawing and/or cancelling the said order of restoration, such a plea cannot be taken at this distant date that the restoration was under a mistaken belief. As a matter of fact, the respondent possesses power and jurisdiction to extend time for making payment of the charges for a particular period by charging interest. Be that as it may, since no order has been passed by the respondent withdrawing and/or cancelling the order of restoration of the allotment, the said plea cannot be entertained in the present writ petition.

Effect of frustration, if any, of the need and purpose in view of change in the Master Plan:

16. It is an admitted case that the petitioner was allotted an alternative plot of land under the order dated 16.11.1971 on specific condition that after allotment of the alternative plot of land, the petitioner would shift his industry/warehouse from the non-conforming location. The aforesaid allotment was made in favour of the petitioner as the petitioner was required to move out of the non-conforming area and in terms of the aforesaid scheme, the unit of the petitioner was required to be rehabilitated on payment of concessional rate. With the order of allotment issued by the respondent, a right was created in favour of the petitioner to be allotted with the aforesaid plot of land in a conforming area on a price to be paid at concessional rate. Even on the date of filing of the writ petition, the petitioner continued to have the said right and, therefore, if on the date of filing of the writ petition, the writ petition could have been disposed of, the petitioner would have been entitled to the reliefs sought for but, during the pendency of the writ petition the Master Plan came to be revised by the respondent whereunder the area in question in which the industry is located has been declared as a conforming area and therefore, there is no requirement for the petitioner to shift his industry. According to the counsel for the respondent with the change in the Master Plan and in view of the development and happening of subsequent event, there is no further need to move out of the area and thus there is no question of rehabilitation as well and therefore, the need is rendered nugatory.

17. The Supreme Court in the decision of Rameshwar and others (supra) has held that it is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suit or legal proceeding is instituted and, therefore, the right of a party is to be determined by the facts as they exist on the date the action is instituted and later developments cannot defeat his right. The Court's procedural delays cannot deprive him of legal justice or rights crystallised in the initial cause of action. In paragraph 9 of the said judgment, the Supreme Court has held that the Courts can, however, take notice of the subsequent events and mould the relief to be granted but the same could be done only in exceptional circumstances and the rights divested by Statute cannot be divested by the equitable doctrine. The following relevant portion from paragraph 9 is extracted below:-

"The impact of subsequent happenings may now be spelt out. First, its bearing on the right of action second, on the nature of the relief and third, on its impotence to create or destroy substantive rights. Where the nature of the relief, as originally sought, has become obsolete or unserviceable or a new form of relief will be more efficacious on account of developments subsequent to the suit or even during the appellate stage, it is but fair that the relief is moulded, varied or reshaped in the light of updated facts. .... .... ....

Subsequent events in the course of the case cannot be constitutive of substantive rights enforceable in that very litigation except in a narrow category but may influence the equitable jurisdiction to mould reliefs. Conversely, where rights have already vested in a party, they cannot be nullified or negated by subsequent events save where there is a change in the law and it is made applicable at any stage. Lachmeshwar Prasad V. Keshwar Lal, 1940 FCR 84 falls in this category. Courts of justice may, when the compelling equities of a case oblige them, shape reliefs can not deny rights - to make them justly relevant in the updated circumstances."

18. When the ratio of the aforesaid decision is applied to the facts and circumstances of the present case, it would be found that the date on which the present writ proceeding was instituted in this Court, the Master Plan was not revised and the petitioner continued to operate from a non-conforming area. By Virtue of the same, he had acquired a right for allotment of an alternative plot of land which was recognised and a plot was allotted in favour of the petitioner in respect of which reliefs have been sought for, for handing over possession of the said plot to the petitioner and for execution of the perpetualliase deed. He had, therefore, acquired a right to be given possession of the land in question. The aforesaid subsequent even bringing in certain changes in the revised Master Plan, therefore, cannot and shall not have any bearing to the facts of the present case. If the petitioner would have been granted the relief on the very first day when he had approached this Court, relief as sought for by the petitioner would have been granted to him for, on the said date, the petitioner was operating in a non-conforming area and he held a valid order of allotment of the land in question. Merely because possession of the land was not given to him and as there was some delay in disposal of the writ petitioner, the petitioner cannot be deprived of his right to get allotment of the said alternative plot of land. Besides, the petitioner has placed on record certain documents to show that the High Power Committee appointed by the Supreme Court rejected the application of the petitioner by not allowing him to carry on his business activity in the same area from which he is operating. It was also stated that the licence granted to the petitioner is an ad hoc licence which was granted only to those industries which are operating in a non-conforming area. The aforesaid facts, therefore, do not conclusively prove that the petitioner has the right to continue to operate from the area concerned as the High power Committee appointed pursuant to the orders of the Supreme Court has rejected the application of the petitioner.

19. In that view of the matter, the objections taken by the respondent in the present writ petition are found to be without any merit. There is sufficient and substantial force in the averments made in the writ petition. Since the petitioner was allotted with an alternative plot of land which although was cancelled at one point of time was subsequently restored in favour of the petitioner and, therefore, the petitioner is entitled to the reliefs sought for in the present petition. A direction is, therefore, issued to the respondent to issue a fresh demand notice to the petitioner directing him to pay whatever arrears are payable along with interest at a reasonable rate, if any, and on service of such demand notice, the petitioner shall pay the amount within four weeks thereof. On payment of the aforesaid amount, an alternative plot of equal size as allotted to him earlier shall be identified and allotted to the petitioner within eight weeks thereof. The petitioner then shall be called upon to complete all formalibes and on completion of the same the respondent shall hand over possession thereof and shall also take all necessary steps to execute the perpetual lease deed in favour of the petitioner within four weeks, from the date of completion of all the formalities by the petitioner.

20. In the light of the aforesaid discussion, the writ petition stands allowed to the extent indicated above, but there shall be no order as to costs.