Delhi Development Authority And ... vs Inderjit
2000 Latest Caselaw 1047 Del

JUDGMENT

D.K. Jain, J.

1. This appeal under Clause 10 of the Letters Patent is directed against the judgment, dated 30 August 1996, whereby the learned Single Judge has directed the Delhi Development Authority (for short the 'DDA'), the appellant before us, to allot to the respondent herein an industrial plot bearing No. B-14, G.T. Karnal Road, Delhi, measuring 1200 sq. yards at a pre-determined rate of Rs. 160/- per sq. mtr. In the writ petition the respondent had assailed a letter issued by the DDA, informing him that his application for allotment of industrial plot had been rejected on account of his failure to deposit 30% of the premium amount in terms of the advertisement 'issued by the DDA in the newspaper on 29 September 1976, A brief reference to the facts of the case would be necessary to appreciate the controversy involved.

2. With a view to provide an opportunity to the industrialists to shift their industries, functioning in the non-conforming areas or the areas which were under acquisition for various public purposes, to conforming areas, the DDA issued as advertisement on 20 February 1976 asking the industrialists to apply for land in the conforming areas which had been developed by the DDA in different localities of Delhi according to the provisions of the Master Plan. The applicants were advised to apply in the prescribed form. The advertisement also informed the applicants that they were required to deposit earnest money on the basis of size of the plot applied by them for allotment. Price of the allotted land was to be deposited in four quarterly instalments. The last date for receipt of applications was 31 March 1976, which was later on extended to 15 April 1976 vide another advertisement issued in the newspaper on 19 March 1976. The respondent submitted his application on 15 April 1976 for allotment of a plot measuring 840 sq. mtr. along with proof of deposit of earnest money. As the number of applicants was very large and the plots were few, it appears, the DDA decided that the applicants should be asked to deposit 30% of the premium amount of land as a condition precedent for consideration of their applications. As advertisement to this effect was issued on 29 September 1976 in the Hindustan Times. The applicants were required to deposit the said amount by 31 October 1976. This notice also specified the rates to be charged for different types of developed plots. It is not in dispute that the respondent had applied and deposited the earnest money in terms of the advertisement issued in March 1976. He, however, failed to pay 30% of the total premium of land, which he was required to deposit in terms of the advertisement is sued in September 1976. It is a common ground that respondent's application was rejected because he had failed to deposit 30% of the premium in terms of the second advertisement. Intimation in this behalf was sent to the respondent vide DDA's impugned letter dated 6 August 1981 along with refund of the earnest money. As noted above, it was this communication which was impugned in the writ petition, mainly on the ground that the third advertisement published in the newspaper in September 1976 was not noticed by the applicant and it was incumbent upon the DDA to inform him by means of an individual notice about any change in the original terms and conditions of allotment and since the DDA had failed to do so, it could not reject respondent's application on the stated ground.

3. Though as per the impugned letter, application of the respondent was rejected principal on the ground that he had failed to deposit 30 of the premium in terms of the subsequent notice issued in September 1976 but in the affidavit filed by DDA, resisting the writ petition, the rejection of respondent's application was also sought to be satisfied on the plea that his case did not fall under the scheme inasmuch as his factory was situated in Lal Dora area, which could not be considered to be a non-conforming area. It may be noted that no such reason for rejection of respondent's application was assigned in the impugned letter. The respondent controverted the stand of DDA by filing a rejoinder-affidavit, in which he also relied on certain notings in DDA's file indicating that respondent's factory existed in non-conforming area. During the pendency of the writ petition an additional affidavit was filed on behalf of DDA wherein it was pointed out that the case of respondent was re-considered by the competent authority and vide resolution No. 50, dated 23 May 1980, placed on record by the respondent and to which we shall refer to in the later part of the judgment, it was decided that only those applicants will be considered for allotment, who had deposited 30% premium of the Plot within the stipulated time.

4. Making a reference to the provisions of Sections 43 and 44 of the Delhi Development Act, 1957 (for short the Act) and drawing support from the decision of the Supreme Court in Syed Hasan Rasul Numa and Ors. v. Union of India and Ors., , wherein it was held that for issue of public notice under the Act, it was mandatory for the authorities to follow any of the two modes provided in the section, the learned Single Judge case to the conclusion that since by the subsequent advertisement, dated 29 September 1976, the DDA had changed the terms and conditions of allotment, it was under an obligation to serve the respondent with an individual notice. The learned Judge had observed that the day the respondent deposited the earnest money is response to the first advertisement, a right had accrued in his favour and he could not be deprived of his right by merely publishing an advertisement in the newspaper. Though the learned Judge has not recorded any categorical finding on the question whether the respondent's factory was in a non-confirming area or not but has observed that on account of non-rebuttal to respondent's rejoinder, the DDA is deemed to have accepted the stand of respondent that it was situated in a non-conforming area. The learned Judge has finally directed the DDA to allot the afore-noted earmarked plot (reserved under the orders of the Court) to the respondent at a predetermined rate on respondent's paying to the DDA a sum of Rs. 1,60,640/- with interest @ 18% per annum from 6 August 1981 till the date of payment.

5. We have heard Ms. Geeta Mittal, learned counsel for the DDA and Mr. J.C Batra, learned Senior counsel for the respondent. It is submitted by Ms. Mittal that: (1) Section 43 of the Act - providing for the manner in which all notices, orders and documents are to be served and Section 44 which provides for modes for making public notices known, did not apply in the instant case as no notice or order was required to be issued under the provisions of the Act because the allotment of plots in question was under Delhi Development Authority Disposal of Developed Nazul Land) Rules, 1981 (in short the 'Nazul Rules') and not under the Act; (ii) no right for allotment of a plot had vested in the respondent on mere submission of the application form with the earnest money; and (iii) even after the deposit of 30% of the premium amount the case of an applicant was required to be considered on merits by a Committee constituted by the DDA and, therefore, the learned Single Judge was not justified in directing the DDA to allot the plot of land to the respondent without consideration of his application by the Allotment Committee. The learned counsel referred us to a decision of the Supreme Court in D.D.A. v. Ambitious Enterprises and Anr., 67 (1997) DLT (SC) 774, in which, dealing with the same scheme and while considering the question whether the DDA could subsequently superimpose a fresh condition of payment of 30% of the premium for allotment of plot of land, which was not there in the original advertisement, the Apex Court held that such an act could not be said to be arbitrary, un-reasonable or irrational. It was also asserted that advertisement dated 29 September 1976, asking the applicants to deposit 30% of the total premium also stood impliedly approved by the Supreme Court in the said decision. Mr. Batra, learned Senior counsel for the respondent, on the other hand, supported the view taken by the learned Single Judge.

6. Having considered the matter in the light of the material available in the writ file, we feel that on the peculiar facts of the instant case it is not necessary to express a final opinion on the question of mode of service of notice, order etc. as postulated in Sections 43 and 44 of the Act because even otherwise the DDA had lost sight of the basic principles of natural justice. We find from the record that after submission of his application on 15 April 1976, the respondent had addressed a letter to the DDA on 20 July 1976, enquiring about the status of his application. In the counter affidavit, receipt of this letter is admitted but it is stated that the said letter was of no consequence inasmuch as in September 1976 the respondent was called upon by an advertisement in the newspaper to deposit 30% of the premium amount. In purview, respondent's said letter and the said advertisement were so closely proximate in time that the DDA should have responded to respondent's letter and informed him about the proposed change in the payment schedule, particularly when it is evident from the following extracts of DDA's resolution No. 50, date 23 May 1980 that the DDA was conscious of the fact that a large number of applicants had missed the subsequent advertisement dated 29 September 1976:

7. In one of the meetings of the Land Allotment Advisory Committee held on 9th February, 1979, under the Chairmanship of C.E.C., a point was raised by some of the non-official members that the first advertisement issued by the DDA inviting applications for allotment of industrial plots amounted to an 'offer' and when the industrial units deposited the earnest money of Rs. 250/-, Rs. 500/- @ Rs. 1000/- and Rs. 2,000/-, this amounted to acceptance of the offer.

It was also mentioned that the public notice issued by the DDA on 29.9.1976 requiring payment of 30% of premium had not been seen by a large number of applicants and as such they have been deprived of the opportunity to deposit the said amount of 30%.

It was emphasised that individual notice should have been issued by the DDA to each of the 15,000 and odd applicants.

8. On this point, legal advise was sought and it was advised that we would send individual notices to all the applicants who had deposited the earnest money.

9. The case was then submitted to Chief Executive Councillor on 16.7.1976 who agreed with the legal advice and desired the Lt. Governor to look into the matter. Lt. Governor, thereafter directed that action as per the legal advice may be taken but the allotment would be restricted to those who are required to shift from non-conforming sites. When the above orders were proposed to be implemented, it came to the notice that there would be about 4,000 applicants who had not obtained the refund and hence we would have to issue individual notices in about 4,300 cases as against about 1300 as originally contemplated."

7. There is no further discussion or any other indication in the minutes on the issue of individual notices to all the applicants but it appears that the legal advice suggesting issue of individual notices to the applicants was not adhered to because it was felt, that individual notices will have to be issued in more than 4000 cases, which we feel was not an insurmountable exercise. Merely because issue of notice to a large number of applicants would have been time consuming, it could not be taken as a ground to deny a fair opportunity to the respondent to put forth his case. In K.I. Shephard v. Union of India, , the Supreme Court observed that "natural justice generally requires that persons liable to be directly affected by proposed administrative acts, decisions or proceedings be given adequate notice of what is proposed so that they may be in a position: (a) to make representations on their own behalf; (b) or to appear at a hearing or enquiry (if one is held); and (c) effectively prepare their own case and answer the case (if any), they have to meet". The principle of natural justice is universally accepted though the standards may vary with situations contracting into brief. As observed by Lord Denning M.R. in Regina v. Secretary of State for the Home Department, Ex. Porte Santillo, 1981 Q.B. 778 at 795, the rules of natural justice - or of fairness - "are not cut and dried. They vary infinitely". We feel that the necessity of their invocation and observance, on the facts of a given case, like the one in hand, is called for. In the light of the factual backdrop we are of the opinion that since in the instant case, principles of natural justice have not been adhered to, the order of the learned Single Judge does not require any interference, insofar as the question of issue of notice to the respondent is concerned, though on a different line of reasoning.

8. However, bearing in mind the fact that the subsequent imposition, of twin conditions, namely, (i) the prospective allottee should have a valid municipal licence under Section 416 of the Delhi Municipal Corporation Act, 1957 on the date of submission of the application and (ii) the industry should be existing in a non-conforming are, for being eligible for industrial plot under the scheme has been upheld by the Apex Court in Ambitious Enterprises case (supra) we feel that the learned Single Judge was not justified in directing the DDA to allot a plot to the respondent without his case being placed before the Committee, constituted to examine each and every case, so as to determine his eligibility, particularly when there was a serious controversy with regard to the question whether the Lal Dora area, where respondent's factory was situated, fell in a non-confirming area or not. We are of the view that though the learned Judge has made a reference to some office notings, relied upon by the respondent, and has observed that the same having not been challenged by the DDA, are deemed to have been admitted, this factual aspect should have been left to be decided by the authorities concerned. Accordingly, we allow the appeal and set aside the order of the learned Single Judge to this extent and remand the case to the Committee, which may have to be constituted afresh on similar lines as was done earlier, to scrutinise the application of the respondent and examine whether he fulfills the afore-noted two conditions. It the Committee finds the respondent to be otherwise eligible, the plot reserved under the orders of this Court shall be allotted to him on his making payment in terms of orders of the learned Single Judge. Till a final decision is taken by the said Committee, the interim order, directing maintenance of status quo with regard to the plot in question, shall remain operative.

9. The appeal is disposed of in the above terms with no order as to costs.