Govind Plastics vs Delhi Development Authority And ...
2002 Latest Caselaw 2152 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. The petitioner claims to be carrying on business of plastic industry at 3484/1, Narang Colony, Tri Nagar, Delhi- 110 035 as a tenant which is a residential area. The industry was thus being run in the non-conforming area. An advertisement was issued by the DDA in the year 1975-76 for allotment of industrial plots to industries being run in non-conforming areas. The petitioner applied or the allotment of an industrial plot measuring 200 sq. meters in pursuance to the said advertisement and deposited a total sum of Rs. 12,500/- in 1976. The amount of Rs. 12,000/- is stated to have been deposited towards 30% of the cost of the plot.

2. The petitioner claims to be a member of Multi Small Scale Industries Association and it is stated that in terms of the letter dated 18.8.1980 the association was informed that a decision had been taken to allot industrial plots to nearly 300 applicants who had deposited 30% of the premium and that further action would be taken to implement the scheme. In august/September, 1982 the association informed the petitioner to furnish to the respondent documents relating to the MCD license, annual turn-over, number of workers employed and the consumption of the items manufactured. This was informed by the petitioner to the respondent vide letter dated 30.9.1982. However, in the petition it is stated that no such demand of documents could have been made since that was not the part of the scheme.

3. The petitioner received a letter dated 9.3.1989 along with a cheque of Rs. 12,500/- being the refund of the earnest money/premium deposited which was returned by the petitioner to the respondents on 17.4.1989. The respondents, however, again returned the cheque with the letter dated 17.5.1989 and it is stated that the petitioner once again returned the cheque. The petitioner thus filed the writ petition to direct respondents to allot the petitioner industrial plot measuring 200 sq. meters under the scheme @ Rs. 200/- per square meter.

4. In the counter affidavit it is admitted that the petitioner applied for allotment of the plot and also paid the earnest money. It is stated that about 15,000 applications were received and 30% premium was demanded from all the applicants. The demand of the relevant documents is defended as not being in contravention with the scheme since the purpose was to determine the eligibility of the units since allotment was to be made to units which were in non-conforming areas.

5. It is stated in the counter affidavit that a Committee was constituted to look into the large number of applications and on preliminary scrutiny the cases were founded as under:-

a) Total number of cases 299

b) Cases clear for allotment 184

c) Allotment cases 115

6. The cases which were found eligible for allotment were further scrutinised by the Committee by carrying out an inspection of all such cases and documents were called for. The physical performance of the units was decided to be assessed and a proforma was circulated to these units. On every Wednesday and Saturday these units were inspected. It is thus stated that at the initial stage 184 cases which were cleared for allotment were on the basis of municipal licenses issued to them stating that they were functioning in the non-conforming areas with power. The second category of cases numbering 115 was on physical performance of units irrespective of category of municipal license. The basis for physical performance and scale of operation thus was area of the floor on which it was functioning, scale of operation whether ordinary/small/moderate/extensive, hazardous nature, nuisance, location etc. On such verification 60 units out of 115 were recommended to be shifted and were thus recommended for allotment of alternate industrial plots. The industry of the petitioner, however, fell in the category of the cases which were rejected on the basis of the said assessment.

7. Learned counsel for the petitioner contends that the petitioner was running a plastic unit which was a hazardous industry. On the representation of the respondents the petitioner applied and completed all formalities. The money towards the initial 30% amount was deposited by the petitioner and even the association of the petitioner was informed vide letter dated 18.8.80 that a decision was taken to allot industrial plots to nearly 300 applicants. Thus it is contended that an assurance was held out to the petitioner that an allotment would be made in his favor.

8. Learned counsel for the petitioner has referred to the judgment of the learned Single Judge of this court in Chopra Dyeing Industries v. Delhi Development Authority where while dealing with the issue of allotment of alternate plots by the respondent for shifting industry from non-conforming areas it was held that the application could not be rejected for want of municipal license since the scheme did not provide for the same. A reference is also being made to the judgment of the Supreme Court in DDA v. Ambitious Enterprises and Anr. where once again the issue raised was of rejection of allotment to industrial units on ground of not holding of municipal license under the MCD Act. Such rejection was held neither to be unreasonable nor irrational as running trade without license would be a continuing offence and cannot be equated with a concern running under a license. However, on examination of facts in few cases temporary ad-hoc licenses were found to have been issued with retrospective basis and in these cases rejection of allotment by DDA was held not to be proper.

9. It may be relevant to note that learned counsel for the petitioner admits that the petitioner continued to run the business for a long period of time but the business is stated to have been closed about a year ago in view of certain directions of the Supreme Court.

10. Learned counsel for the respondents contends that there was a Committee constituted to examine the cases of all the applicants and the case of the petitioner was also so examined in terms of the prescribed norms and criteria. It is contended that the norms were relevant and that in view of the judgment in M/s. Ambitious Enterprises's case(supra) the rejection of a case on the basis of not holding municipal license has been held to be valid. It was contended that no assurance has been held out to the petitioner and only initial 30% amount was deposited.

11. Learned counsel for the respondent has relied upon the judgment of the Division Bench of this court in Golcha Hosiery Mills v. DDA and Ors. which was once again dealing with the issue of allotment of alternate plots to all those shifted to other industrial areas. It was held that once the DDA was not insisting on the shifting of the said person from the place where he was carrying on business, no case can be made out of being compulsorily uprooted. The alternate land is a matter of rehabilitation and the said question would arise only if the DDA wants that the business should not be conducted in the Zone. It was further held that the issue of allotment of the plot at any place would arise only if the person was found eligible for allotment.

12. I have considered the submissions advanced by learned counsel for the parties.

13. There is no doubt about the fact that the petitioner had applied in pursuance to the advertisement of the respondent and deposited a sum of Rs. 12,500/-. However, since the number of cases was very high, a Committee was constituted to examine the cases which found only 184 cases clear for allotment out of total number of 299 cases. Further examination took place of the other allotment cases numbering 115 after carrying out inspection and verification of municipal license as also other parameters of occupation, number of workers, annual return etc. The case of the petitioner fell within this category but on final examination the case of the petitioner was not found eligible for allotment. It may be stated that the basis of physical performance and scale of operation was also considered as also the extent and nature of the hazardous nature. The amount was thus so refunded to the petitioner but the petitioner failed to accept the same.

14. It is apparent from the judgment of the Supreme Court in M/s. Ambitious Enterprises's case(supra) that the demand of the municipal licenses cannot be said to be unreasonable since the running of the trade without license would be a continuing offence. The Committee followed a uniform policy and criteria to examine all the cases and thus the respondents cannot be faulted for rejection of the case of the petitioner.

15. Another important aspect to be considered is the continuation of the business byu the petitioner at site till almost a year ago when it is stated to have been closed in pursuance to certain directions of the Supreme Court. The closure which has now stated to have taken place cannot be the basis of allotment at the stage when the case of the petitioner was rejected. The Division Bench of this Court in Golcha. Hosiery's case(supra) has held that once there is no insistence on shifting, there cannot be any right for allotment of a alternate industrial plot. The petitioner certainly did not shift nor did he stop business.

16. In view of this position the petitioner cannot claim any right for allotment of plot as on the date of consideration of this application and thus I am of the considered view that no case has been made out for granting the relief as prayed for in the writ petition.

17. It may, however, be noticed that from the pleadings it emerges that the petitioner did not encash of amount of Rs. 12,500/- refunded to the petitioner. This amount was refunded to the petitioner in March, 1989. The petitioner had deposited the amount in November, 1976. Thus it took more than 12 years for the refund of the amount which was lying with the respondent. This cannot be stated to be a reasonable period for examination of the case of the petitioner and thus in my considered view the petitioner would be entitled to the refund of the amount with interest @ 12% per annum. Taking into consideration that the payment was made in November, 1976 and even considering that large number of applications were received the cases should have at least been processed within a period of one year or so. Thus I am of the considered view that the period for which the interest would be liable to the paid to the petitioner would be from 1.3.1978 to 28.2.1989 since the refund was made on 9.3.1989. The petitioner refused to accept the cheque and for this the respondent cannot be made to pay interest. It is thus directed that the amount of Rs. 12,500 along with interest @ 12% per annum from 1.3.1978 to 28.2.1989 be refunded to the petitioner within a period of 4 weeks from today. In case of any delay in making the payment apart from any other action which may be proceeded against the respondent for non-compliance of the order, the respondent shall be liable to pay interest @ 18% per annum for the delayed period.

18. The writ petition stands disposed of in the aforesaid terms leaving the parties to bear their own costs.